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SACKETT'S 


INSTRUCTIONS 


AND 


REQUESTS  FOR  INSTRUCTIONS 


IN  JURY  TRIALS. 


ESPECIATXY  ADAPTED  TO  THE    PRACTICE  OP  THOSE    STATES    WHERE 
SUCH  INSTRUCTIONS  ARE  REQUIRED  TO  BE  IN  WRITING. 


SECOND  EDITION  REVISED. 


By  martin  L.  NEWELL, 

COUNSELOR  AT  LAW. 


CHICAGO: 

CALLAGE  AN  &  COMPANY. 


Entered  according  to  Act  of  Congress,  in  the  year  1888, 

By  Callaghan  &  Company, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


T 
1888 


Stersotyp«d   and    Printed 

by  tno 

Chic&go    Legal    Newi    Company. 


PEEFACE  TO  THE  FIEST  EDITION. 

In  offering  this  work  to  the  profession,  it  may  not  be  im- 
proper to  state  the  considerations  which  induced  its  undertak- 
ing, and  the  objects  sought  to  be  accomplished  by  it.  JSTo 
attempt  has  been  made  to  write  a  formal  treatise  on  the  law 
of  instructions,  or  the  practice  of  instructing  juries;  the  design 
has  been  rather  to  furnish  the  profession  in  those  States  where 
instructions  are  required  to  be  in  writing,  a  work  of  practical 
utility,  by  collecting  together,  in  a  somewhat  connected  form, 
the  decisions  of  the  higher  courts  regarding  the  general  form 
and  essential  requisites  of  written  instructions,  to  be  given  by 
the  court  to  the  jury;  and  also,  by  furnishing  carefully  pre- 
pared general  instructions  upon  many  of  the  more  common 
and  intricate  questions  likely  to  arise  in  a  general  practice. 

There  is,  perhaps,  no  other  branch  of  the  practice  in  which 
a  young  practitioner  feels  the  need  of  assistance  so  much  as 
in  the  preparation  of  his  instructions,  and  requests  for  instruc- 
tions to  the  jury.  He  generally  commences  the  practice  of  his 
profession  not  only  without  experience,  but  without  even  a 
theoretical  knowledge  of  the  subject,  and,  in  the  absence  of 
some  work  of  this  kind,  without  any  means  of  acquiring  such 
knowledge.  If  he  refers  to  his  usual  text-books,  he  will  find 
stated  the  general  principle  of  law  which  he  seeks,  together  with 
an  account  of  its  origin,  history,  mutations,  contrary  holdings 
and  the  reasons  upon  which  it  is  based,  with  illustrations  drawn 
from  other  systems  of  jurisprudence,  while  its  exceptions,  qual- 
ifications and  limitations  are  treated  of  in  another  chapter;  all 
of  which  may  be  proper  enough  for  a  learner,  but  it  is  of 
little  assistance  in  the  attempt  to  give  a  concise  and  exact 
statement  of  the  whole  of  the  law  upon  the  point  in  question. 

It  not  unfrequently  happens  that,  for  greater  certainty,  he 
quotes,  in  his  instructions,  verbatim,  from  an  opinion  given  by 
the  higher  courts  in  a  similar  case,  and  ultimately  finds,  to  his 

(iii) 


609844 


tv  PEEFACE. 

sur])rise,  that  while  the  language  used  by  the  court  was  proper 
euouo'h,  taken  in  connection  with  tlie  facts  in  the  case  under 
consideration,  it  was  not  intended  to  announce  a  principle  of 
universal  application,  and  that,  as  applied  to  his  own  case,  his 
instructions  are  erroneous,  although  stated  "  in  the  very  language 
of  the  Supreme  Court  itself." 

Judging  from  the  number  of  new  trials  granted  and  cases 
reversed,  on  the  ground  of  technical  and  formal  errors  in  the 
instructions  given,  it  would  seem  that  the  ease  is  not  much 
better  with  many  of  the  older  members  of  the  profession.  The 
truth  is,  very  few  lawyers  are  able  to  write  an  elaborate  set  of 
instructions  upon  intricate  points  of  law  amidst  the  distractions 
of  a  hotly  contested  trial,  without  committing  formal  errors, 
which  cannot  be  detected  by  the  judge  who  tries  the  case 
in  the  time  usually  allowed  for  that  purpose.  The  general 
rule  of  law  applicable  to  the  case  may  be  recalled  readily 
enough;  but  its  exceptions  and  qualifications  are  apt  to  be 
overlooked  under  such  circumstances,  and  the  practical  result 
is,  that  more  new  trials  are  granted,  and  more  cases  reversed, 
on  the  ground  of  informality  and  technical  errors  in  the  in- 
structions, than  there  are  for  tlie  reason  that  either  the  counsel 
or  the  court  really  mistook  the  principle  of  the  law  in  the 
case.  In  view  of  these  facts  it  would  seem  that  a  work  of 
this  kind  is  almost  indispensable  to  the  young  practitioner,  and 
tliat  to  the  experienced  lawyer  it  may  be  of  some  assistance, 
to  say  the  least. 

"While  one  instruction  need  not  embody  all  the  law  of  the 
case,  each  instruction  should,  in  itself,  in  a  clear  and  concise 
manner,  correctly  state  the  ])rinciple  of  law  which  it  purports 
to  announce,  with  all  its  necessary  e.\cej)tions  and  limitations, 
without  reference  to  the  other  instructions  in  the  case.  In  the 
following  jjages  are  contained  over  two  thousand  general  in- 
structions, comj)lying  with  the  above  requisites,  which  cover 
most  of  the  more  difficult  points  which  are  likely  to  arise  in  a 
general  i)ractice.  It  is,  of  course,  impossible  to  antici])ate  the 
ever-varying  facts  of  different  cases,  but  it  is  believed  that  but 
few  cases  will  present  themselves,  involving  difficult  proposi- 
tions of  law,  for  which  the  necessary  general  instructions  can 
not  be  found  in  this  work,  or  instructions  embracing  the  prin- 
cijiles   desired  to  be  enunciated,  which  can,  by  very  slight 


I'EEFACE.  V 

verbal  alterations,  be  adapted  to  the  case  in  point,  or  at  least 
serve  as  a  guide  in  drawing  others  adapted  to  the  ])ecu]iar 
facts  of  the  case  on  trial.  With  any  amount  of  aid  from 
others  there  will  always  be  abundant  opportunities  for  the  ex- 
ercise of  learning  and  skill  in  drawing  special  instructions  to 
meet  the  facts  of  each  particular  case. 

Upon  some  subjects  the  local  statutes  and  decisions  of  the 
courts  of  the  several  States  diifer  greatly,  and  it  is  manifestly 
impracticable  to  adapt  all  the  instructions  here  given  to  these 
local  laws  and  decisions;  but  as  they  are  mostly  of  a  general 
nature,  each  practitioner,  by  slight  alterations,  can  make  them 
conform  to  the  statutes  and  practice  of  his  own  State.  It 
must  be  constantly  borne  in  mind  that  the  object  of  this  w^ork 
is  not  so  nnicli  to  teach  the  law,  as  it  is  to  assist  in  a  correct 
statement  of  it ;  and  it  has  been  assumed  that  each  lawyer 
knows  the  laws  peculiar  to  his  own  State. 

When  an  instruction  embodies  a  familiar  principle  of  law, 
it  has  not  been  deemed  necessary  to  cite  authorities  in  support 
of  it,  but  in  all  other  cases  one  or  more  authorities  are  given. 

It  may  not  be  safe  to  assume  that  no  mistakes  have  been 
made  in  attempting  to  state  so  many  distinct  propositions  of 
law,  and  upon  so  great  a  variety  of  subjects  as  are  contained 
in  the  following  pages;  but  no  pains  or  labor  have  been  spared 
to  avoid  errors,  and  it  is  confidently  believed  that  not  many 
will  be  found. 

F.  Sackett. 

Chicago,  DeceTnber,  1880. 


VI  PREFACE    TO    THE    SECOND    EDITION. 

PREFACE  TO  THE  SECOND  EDITIO:^r. 

The  genera]  favor  with  which  the  first  edition  of  this  work 
lias  been  received,  has  induced  the  pnbh'slicrsto  issue  a  second 
and  revised  edition,  in  which  such  errors  as  have  been  discov- 
ered are  corrected,  and  snch  improvements  as  have  suggested 
tliemselves,  or  been  suggested  by  others,  friends  of  the  work, 
are  made.  It  is  hoped  that  these  improvements  will  render 
the  work  of  still  greater  service  to  tlie  profession,  and  still 
more  deserving  of  credit. 

An  eminent  jurist  has  said  that  instructions  should  be  few 
and  those  plain  and  simple  as  language  can  make  them. 
("Walker,  J.,  in  Spynngdale  Cem.  Asso.  v.  Smithy  24  111.,  480.) 
But  when  we  consider  that,  as  a  general  rule,  they  are  written 
by  lawyers  in  the  bustle  and  hurry  of  the  trial,  during  the 
arguments  of  opposing  counsel,  often  when  the  mind  is  tired, 
and  without  previous  study,  it  is  not  surprising  that  many  of 
them,  as  found  in  the  reports,  are  not  plain  and  simple  as  lan- 
guage can  make  them. 

In  this  edition,  where  it  has  been  possible  to  do  so  without 
changing  the  legal  effect,  all  unnecessary  and  surplus  words 
have  been  stricken  out,  at  all  times  kee])ing  in  view  the  object 
of  the  instruction  to  convey  to  the  minds  of  the  jurors  the 
correct  principles  of  the  law  to  be  applied  by  thetn  to  the  evi- 
dence in  making  up  their  verdict. 

The  form  of  the  instructions  given  have  been  held  to  state 
the  law  correctly  in  the  cases  where  given,  and  may  be  easily 
modified  so  as  to  make  them  applicable  to  other  cases,  bearing 
in  mind  that  an  instruction  is  never  proper  unless  based  upon 
the  evidence  in  the  case. 

Martin  L.  Newell. 

Minonk.  Illinois^  May,  18S8. 


CHAPTER  I. 

mSTEUCTIONS— THEIR  FOEMS  AND  EEQUISITES. 

INTKODUCTION CHANGE  OF  THE  COMMON  LAW  PEACTICE — INSTKUO- 

TION  TO  BE  IN  WRITING — LAWS  OF  THE  DIFFERENT  STATES. 

Sec.     1.  statute  mandatory — Instructions  must  be  in  writing. 

2.  Remarks  by  the  Court  calculated  to  influence  the  jury. 

3.  Writing  may  be  waived. 

4.  Court  may  instruct  without  being  asked. 

5.  Duty  of  the  Court  to  instruct. 

6.  Instructions  should  be  clear,  accurate  and  concise. 

7.  Should  not  be  arguiuentative. 

8.  Should  be  confined  to  matters  of  law. 

9.  Should  not  submit  questions  of  law  to  the  jury. 

10.  Degree  of  care  in  a  given  case  is  a  question  of  law. 

11.  Abstract  propositions  of  law  not  to  be  given,  when. 

12.  Should  not  ignore  facts  proven. 

13.  Should  not  give  undue  prominence  to  portions  of  the  evidence. 

14.  Should  not  give  undiiS  prominence  to  unimportant  matters. 

15.  Should  be  given  where  there  is  any  evidence,  etc. 

16.  Must  not  assume  controverted  matters. 

17.  Matters  not  controverted  may  be  assumed. 

18.  Presumptions  of  law  may  be  assumed. 

19.  When  all  material  allegations  are  proved. 

20.  Construction  of  contracts,  for  the  Court. 

21.  Must  be  confined  to  the  issues  being  tried. 

22.  Must  be  based  upon  the  evidence. 

23.  One  instruction  may  be  limited  by  others. 

24.  Should  be  considered  together. 

25.  Error  in,  will  not  always  reverse, 

26.  Must  be  construed  in  connection  with  the  evidence. 

27.  When  error  will  reverse. 

28.  Should  be  harmonious. 

29.  Must  require  the  jury  to  believe  from  the  evidence.  •, 

30.  Are  not  to  be  repeated,  when. 

31.  Instructing  as  in  case  of  non-suit. 

32.  Error  in  admitting  evidence,  obviated  by. 

33.  When  not  obviated  by,  etc. 

34.  Effect  of  evidence  limited  by. 

35.  Jury  may  come  in  for  further  instructions. 

36.  Giving  of  further  instructions  discretionary. 

37.  Court  may  limit  the  time  for  instructions. 

38.  Jury  judges  of  law  in  criminal  cases,  in  some  States. 

a) 


mSTKUCTIONS. 


mSTRUCTIONS. 


In  the  orderly  and  regular  progress  of  a  cause  before  a  jury, 
in  courts  ^vhere  the  common  law  practice  prevails,  after  the 
cause  has  been  argued  by  the  counsel  on  both  sides,  the  judge 
proceeds  to  charge  the  jury  orally,  explaining  to  them  the 
nature  of  the  action  and  of  the  defense,  and  the  points  in  issue 
between  the  parties,  recapitulating  the  evidence  which  has 
been  produced  upon  both  sides,  and  remarking  upon  it  when 
he  deems  it  necessary  or  desirable,  and  directing  or  instruct- 
ing the  jury  on  all  points  of  law  arising  upon  the  evidence ; 
or,  to  quote  the  words  of  Chitty:  ''  It  is  the  practice  for  the 
judge  at  7iisi  prms  not  only  to  state  to  the  jury  all  the  evi- 
dence that  has  been  given,  but  to  comment  upon  its  bearing 
and  weight,  and  to  state  the  legal  rules  upon  the  subject  and 
their  application  to  the  particular  case,  and  to  advise  them  as 
regards  the  verdict  they  should  give." 

This  common  law  practice,  in  many  of  the  States,  has  been 
changed  by  statute,  so  as  to  requij^  the  court  to  instruct  the 
jury  as  to  the  law  of  the  case  only,  and,  either  peremptorily 
or  at  the  request  of  either  party,  to  reduce  his  charge  to  writ- 
ing. The  general  character  and  scope  of  these  changes  in  the 
common  law  practice  will  appear  from  the  following  statutory 
provisions  of  some  of  the  States: 

Illinois. — The  court,  in  charging  the  jury,  shall  only  instruct 
as  to  the  law  of  the  case.  Hereafter  no  judge  shall  instruct 
the  petit  jury  in  any  case,  civil  or  criminal,  unless  such  in- 
structions are  reduced  to  writing. 

"  And  when  instructions  are  asked  which  the  court  cannot 
give,  he  shall  on  the  margin  thereof  write  the  word,  'Re- 
fused;' and  such  as  he  approves  he  shall  write  on  the  margin 
thereof  the  word,  'Given;'  and  he  shall  in  no  case,  after  in- 
structions are  given,  qualify,  modify  or  in  any  manner  explain 
the  same  to  the  jury  otherwise  than  in  writing."  R.  S.  111., 
1887,  p.  976. 

Colorado. — "In  the  trial  of  criminal  cases  in  courts  of  record, 
the  instructions  of  the  court  to  the  jury  shall  be  given  in  writ- 


TIIEIK   FORMS    AND   REQUISITES.  9 

in^,  and  before  the  ari^ument  is  made  by  counsel  to  the  jxn-y, 
if'  the  same  shall  be  requested  by  the  district  attorney  or  by 
the  counsel  for  the  defense."     R.  S.  Colo.,  1883,  362. 

Minnesota. — "  A  party  may,  and,  if  required  by  the  court, 
shall,  when  the  evidence  is  closed,  submit,  in  distinct  and  con- 
cise pro])Ositions,  the  conclusions  of  fact  which  he  claims  to 
be  established,  or  the  conclusions  of  law  which  he  desires  to 
be  adjudged,  or  both;  they  may  be  written  and  handed  to  the 
court,  or,  at  the  option  of  the  court,  oral,  and  entered  in  the 
judge's  minutes,  but  in  either  case  they  shall  be  entered,  with 
any  exception  that  may  be  taken,  if  either  party  requires  it." 
R.  S.  Minn.,  1878,  748. 

Missouri. — "  "Wlien  the  evidence  is  concluded,  and  before  the 
case  is  argued  or  submitted  to  the  jury,  or  to  the  court  sitting 
as  a  jury,  either  party  may  move  the  court  to  give  instructions 
on  any  point  of  law  arising  in  the  cause,  which  shall  be  in 
writing  and  shall  be  given  or  refused.  The  court  may  of  its 
own  motion,  give  like  instructions;  and  such  instructions  as 
shall  be  given  by  the  court,  shall  be  carried  by  the  jury  to 
their  room  for  their  guidance  to  a  correct  verdict  according 
to  the  law  and  evidence."     E.  S.  Mo.,  1879,  622. 

Nebraska. — "  It  shall  be  the  duty  of  the  judges  of  the  several 
district  courts  in  all  cases  both  civil  and  criminal,  to  reduce 
their  charge  or  instructions  to  the  jury  to  writing,  before 
giving  the  same  to  the  jury,  unless  the  so  giving  the  same  is 
waived  by  the  counsel  in  the  case  in  open  court,  and  so  entered 
in  the  record  of  said  case;  and  either  party  may  request 
instructions  to  the  jury  on  points  of  law,  which  shall  be  given 
or  refused  by  the  court.  All  insti-uctions  asked  shall  be  in 
w^'iting. 

"  If  the  court  refuse  a  written  instruction  as  demanded,  but 
give  the  same  with  a  modification,  which  the  court  may  do, 
such  modification  shall  not  be  by  interlineation  or  erasure,  but 
shall  be  well  defined,  and  shall  follow  some  such  characterizing 
words  as  "  changed  thus, "  which  words  shall  themselves  indi- 
cate that  the  same  was  refused  as  demanded. 

No  oral  explanation  of  any  instruction  authorized   by  the 


10  IKSTKUCTIONS. 

])recocHng  sections  shall,  in  any  case,  be  allowed,  and  any  in- 
struction or  charge,  or  any  portion  of  a  charge  or  instruction, 
given  to  the  jury  by  the  court  and  not  reduced  to  writing,  aa 
aforesaid,  or  a  neglect  or  refusal  on  the  part  of  the  court  to 
perform  any  duty  enjoined  by  the  preceding  sections,  shall  be 
error  in  the  trial  of  the  case  and  sufficient  for  the  reversal  of 
the  judgment  rendered  therein."     R.  S.  Neb.,  1SS7,  330. 

Kansas. — ""When  the  evidence  is  concluded  and  either  party 
desires  special  instructions  to  be  given  to  the  jury,  such 
instructions  shall  be  reduced  to  writing,  numbered  and  signed 
by  the  party  or  his  attorney  asking  the  same  and  delivered  to 
the  court;  the  court  shall  give  general  instructions  to  the  jury, 
which  shall  be  in  writing  and  be  numbered,  and  signed  by 
the  judge,  if  required  by  either  party."  When  either  party 
asks  for  special  instructions  to  be  given  to  the  jury,  the  court 
shall  either  give  such  instructions  as  requested  or  positively 
refuse  so  to  do;  or  give  the  instructions  with  a  modification  in 
such  manner  that  it  shall  distinctly  appear  what  instructions 
were  given  in  whole  or  in  part,  and  in  like  manner  those 
refused,  so  that  either  party  may  except  to  the  instructions  as 
asked  for  or  as  modified  or  to  the  modification  or  to  the 
refiisal.  All  instructions  given  by  the  court  must  be  signed 
by  the  judge  and  filed  together  with  those  asked  for  by  the 
parties  as  a  part  of  the  record.     R.  S.  Kan.,  Chap.  80,  §  275. 

Dakota. — "  The  court,  in  charging  the  jury,  shall  only  in- 
struct as  to  the  law  of  the  case,"  and  no  court  shall  instruct 
the  petit  jury  in  any  case,  civil  or  criminal,  unless  such  instruc- 
tions are  reduced  to  writing;  and  when  instructions  are  asked 
which  the  judge  cannot  give,  he  shall  write  on  the  margin 
thereof  the  word  "Refused,"  and  such  as  he  approves  he  shall 
write  on  the  margin  thereof  the  word  "Given,"  and  he  shall 
in  no  case,  after  instructions  are  given,  qualify,  modify  or  in 
any  manner  explain  the  same  to  the  jury,  otherwise  than  in 
writing;  and  all  instructions  asked  for  by  counsel  shall  be 
given  or  refused  by  the  judge,  without  modification  or  change, 
unless  such  modification  or  change  be  consented  to  by  the 
counsel  asking  the  same.     Dak.  Comp.  Laws,  §  5048. 

"The  judge  must  then  charge  the  jury;  he  may  state  the 


THEIR    FORMS    AKD    REQUISITES.  11 

testimony,  and  must  declare  the  law,  but  inust  not  cliarge  tlie 
jury  in  respect  to  matters  of  fact;  such  charge  must,  if  so 
requested,  be  reduced  to  writing  before  it  is  given,  unless  by 
tacit  or  mutual  consent  it  is  given  orally,  or  unless  it  is  fully 
taken  down  at  the  time  it  is  g;iven  by  a  stenographic  reporter, 
appointed  by  the  court."     Ibid. 

Arizona — Criminal  Cases. — "  In  charging  the  jnry,  the  court 
shall  state  to  them  all  such  matters  of  law  as  it  may  think 
necessaiy  for  their  information  in  giving  their  verdict.  The 
charges  of  the  court  to  the  jury  shall  be  in  writing,  signed  h}'- 
the  judge,  and  filed  with  the  jtapers  in  the  case,  unless  the  de- 
fendant consent,  in  open  court,  for  the  charges  to  be  sriven 
orall3\"     Compiled  Laws  Arizona,  p.  140. 

Towa. — "When  the  argument  is  concluded,  either  party  may 
request  instructions  to  the  jury  on  points  of  law,  which  shall 
be  given  or  refused  by  the  court.  If  the  court  refuse  a  writ- 
ten instruction  as  demanded,  but  give  the  same  with  a  modifi- 
cation, which  the  court  may  do,  such  modification  shall  not 
be  by  interlineation  or  erasure,  but  shall  be  well  defined,  etc. 

"  The  court  must  read  over  all  the  instructions  which  it  in- 
tends to  give,  and  none  others,  to  the  jnry,  and  must  M-rite  the 
words  '  Given,'  or  '  Eefused,'  as  the  case  may  be,  on  the  mar- 
gin of  each  instruction. 

"After  argument,  the  court  may  also,  of  its  own  motion, 
charge  the  jury,  which  sliall  be  exclusively  in  writing.  The 
coui't  shall  not  make  any  oral  explanation  of  any  instruction 
or  charge." 

Indiana. — "When  the  evidence  is  concluded,  and  either 
]^art_y  desires  special  instructions  to  be  given  to  the  jury,  such 
instruction  shall  be  reduced  to  writing,  numbered  and  signed 
by  the  party  or  his  attorney  asking  the  same,  and  delivered  to 
the  court. 

"When  either  party  asks  special  instructions  to  be  given  to 
the  jury,  the  court  shall  either  give  each  instruction  as  re- 
quested or  positively  refuse  to  do  so;  or  give  the  instruction 
with  a  modification,  in  such  manner  that  it  sluill  distinctly 
appear  what  instructions  were  given  in  whole  or  in  part,  and 


12  INSTKUCTIONS. 

in  like  manner  those  refused,  so  that  either  party  may  except 
to  the  instructions  as  asked  for  or  modified,  or  to  the  modifi- 
cation. 

"When  the  argument  of  the  cause  is  concluded,  the  court 
shall  give  general  instructions  to  the  jury,  which  shall  be  in 
writing  and  signed  by  the  judge,  if  required  by  either  party." 

Michigan. — "  In  all  civil  and  criminal  cases  at  law,  circuit 
courts,  in  cliarging  or  instructing  juries,  shall  charge  or  instruct 
them  only  as  to  the  law  of  the  case;  and  such  charge  or  instruc- 
tion shall  be  in  writing,  and  may  be  given  by  the  court  upon 
its  own  motion. 

"  Either  party  may  present  written  requests  for  instructions 
on  any  point  of  law  arising  in  the  case.  Whenever  instruc- 
tions are  asked  which  the  court  cannot  give,  he  shall  write  in 
the  margin  thereof  '  Eefused ; '  and  such  instructions  as  the 
court  approves  he  shall  designate  by  writing  in  the  margin 
thereof  the  word  '  Given.' 

"And  the  court  shall  in  no  case,  orally  qualify,  modify  or 
in  any  manner  explain  the  same  to  the  jury." 

Ohio. — "  The  court,  after  the  argument  is  concluded,  shall 
immediately  charge  the  jury,  which,  or  any  charge  given 
after  the  conclusion  of  the  argument,  shall  be  reduced  to 
writing  by  the  court,  if  either  ])arty  ]-equest  it,  before  the  ar- 
gument to  the  jury  is  commenced;  and  such  charge,  or  any 
charge  or  instruction  provided  for  in  this  section,  when  so 
written  and  given  shall  in  no  case  be  orally  qualified,  modified 
or  in  any  manner  explained  to  the  jury  by  the  court." 

Wisconsin. — "  Upon  the  trial  of  every  action,  the  judge  pre- 
siding shall,  before  giving  the  same  to  the  jury,  reduce  to 
writing  and  give  as  written  his  charge  and  instructions  to  the 
jury;  and  all  further  and  particular  instructions  given  them 
when  they  shall  return  after  having  once  retired  to  deliberate, 
unless  a  written  charge  be  waived  by  counsel  at  the  commence- 
ment of  the  trial;  and  except  that  the  charge  or  instructions 
may  be  delivered  orally  when  taken  down  by  the  official  phono- 
gra]jhic  reporter  of  the  court.  Each  instruction  asked  by 
counsel  to  be  given  to  the  jury  shall  be  given  without  change 


TIIEIE    FORMS    AND    REQUISITES.  13 

or  modification,  tlie  same  as  asked,  or  refused  in  fnll.  If  any 
judge  shall  violate  any  of  the  foregoing  provisions,  or  make 
pny  comments  to  the  jury  upon  the  law  or  facts  on  the  trial 
in  any  action  without  the  same  being  so  reduced  to  writing  or 
taken  down,  the  judgment  rendered  upon  the  verdict  found 
shall  be  reversed  upon  appeal  or  writ  of  error,  upon  the  fact 
appearing." 

§  1.     Statute  M.andatory — Instructions  must  be  in  Writing, — A 

judge  on  the  trial  of  a  cause  has  no  authority  to  affect  or 
change  the  law  as  stated  in  written  instructions,  by  any  state- 
ment not  in  writing.  It  is  error  for  the  court  to  instruct  the 
juiy  orally,  or  to  orally  explain  or  modify  an  instruction.  Ray 
vs.  Woolters,  19  111.,  82;  Head  et  al.  vs.  LayigwoHhy,  15  la., 
235;  JIa7Yl'm  vs.  IJelion,  50  Ind.,  320;  IlorioJivs.  Willia)ns,2i 
Minn.,  187;  State  vs.  Jojies,  61  Mo.,  232;  Mille?'  vs.  Bamp- 
t07i,  37  Ala.,  342;  Widner  vs.  State,  28  Ind.,  391;  Strattan  vs. 
Paul,  10  la.,  139;   O'Doiinell-v^.  Segar,  25  Mich.,  367. 

It  is  violation  of  the  statute  for  the  court  to  instruct  the 
jury  orally  as  to  the  impropriety  of  certain  modes  of  arriving 
at  their  verdict.     111.  Cent.  Rd.  Co.  vs.  Rammer^  85  111.,  526, 

§  2.     Remarks  by  the  Court  Calcnlated  to  Influence  the  Jury. — It 

^/n    is  not  proper  for  a  court  to  make  remarks  in  the  hearing  of  a 

/     jury  calculated  to  influence  their  finding.     SJcelly  y&.  Roland, 

78  III,  438;  Furliman  vs>.  Himtsville,b4:  Ala.,  263;   Wannack 

vs.  Mayer,  etc.,  53  Ga.,  162;  Rasbrouck  vs.   Milwaukee^   21 

Wis.,  217. 

Remarks  by  the  court  to  the  jury  touching  tbe  public  neces- 
sity of  their  agreeing,  or  otlier  remarks  calculated  to  hasten 
,  -,      their  verdict,  however  well  meant,  is  a  practice  that  cannot  be 
f  sustained  and  is  unwarranted  by  the  law,  and  if  made  in  a  case 

at  law  where  the  facts  are  sharply  contested  would  vitiate  the 
verdict.     FarnKam  vs.  Farnham,  73  111.,  497. 

Contra:  Where  a  jury,  after  being  out  five  hours,  returned 
into  court  and  announced  their  inability  to  agree  upon  a  ver- 
dict, instructions  upon  their  duty  as  to  reconciling  their  views 
and  arriving  at  a  verdict,  if  consistent  with  their  consciences, 
rather  than  that  the  parties  should  be  put  to  the  trouble  and 


14  INSTKUCTIONS. 

expense  of  trying  the  case  again,  nothing  being  said  to  tlie 
prejudice  of  eitlier  party,  are  held  not  erroneous.  Pierce  vs. 
jRehfusSy  35  Mich.,  53;  Allen  vs.   Woodson,  50  Ga.,  53. 

§  3.  In  Writing  may  be  Waived. — "While  the  statute  requires 
the  instructions  given  to  the  jury  shall  be  in  writing,  the  par- 
ties may  waive  that  provision  of  the  law,  and  when  they  do  so 
and  consent  that  the  court  may  instruct  the  jury  orally,  they 
are  estopped  from  afterwards  objecting.  Bates  vs.  Ball,  72 
111.,  108 ;  Litzelman  vs.  Hoioell,  20  111.  App.,  588. 

When  oral  instructions  are  not  excepted  to  on  that  ground, 
at  the  time,  the  error  will  be  regarded  as  waived.  State  vs. 
Sipult,  17  la.,  575  ;   Vamoey  vs.  State,  41  Tex.,  630. 

§  4.  The  Court  may  Instruct  without  Being  Asked. — A  judge 
of  the  circuit  court  is  at  liberty  to  instruct,  at  his  discretion,  if 
he  reduces  his  instructions  to  writing,  so  that  the  jury  can  take 
them  with  them  in  considering  of  their  verdict.  Brown  vs. 
The  People,  4  Gilm.,  439;  Green  vs.  Lewis,  13  lil,  642;  Chi- 
cago vs.  Keefe,  114  111.,  222. 

§  5.  Duty  of  the  Court  to  Instruct. — It  is  the  duty  of  the 
judge,  when  requested,  to  instruct  the  jury  upon  every  point  of 
law  pertinent  to  the  issues.  In  preparing  instructions  each 
party  may  assume  any  reasonable  hypothesis  in  relation  to  the 
facts  of  the  case,  and  ask  the  court  to  declare  tlie  law  as  appli- 
cable to  it,  and  it  is  error  to  refuse  an  instruction  so  framed 
because  th^  case  supposed  does  not  include  some  other  hypoth- 
esis equally  rational.  People  vs.  Taylor,  36  Cal.,  255  ;  Hays 
vs.  Paid,  51  Penn.  St.,  134;  Lyttle  vs.  Boyer,  33  Ohio  St., 
506;  Ray  vs.  Goings,  112  111.,  656. 

Each  party  has  the  right  to  have  the  jury  instructed  upon 
the  law  of  the  case  clearly  and  pointedly,  so  as  to  leave  no 
reasonable  ground  for  misapprehension  or  mistake;  and  if 
the  instructions  of  the  court  fail  thus  to  instruct,  it  is  error  to 
refuse  one  calculated  to  care  the  omission.  Muldowney  vs. 
111.  Cent.  lid.  Co.,Z'l  Iowa,  176;  Carpenter  \^.  State,  43  Ind., 
371;  Morris  vs.  Plait,  32  Conn.,  75;  Nels  vs.  State,  2  Tex., 
280. 

It  is  the  duty  of  the  judge  to  see  that  every  case  so  goes  to 


THEIK   FOKMS   AND    REQUISITES.  15 

the  jury  that  they  have  clear  and  intelh'gent  notions  of  the 
points  they  are  to  decide,  and  to  this  end  he  should  give 
necessary  instructions  whether  so  requested  by  counsel  or  not, 
and  his  failure  so  to  do  is  held  ground  for  a  new  trial  where 
the  verdict  was  not  one  which  eliectuated  justice  between  the 
parties.  Owen  vs.  Oboen,  22  la,,  270;  The  State  vs.  Brainard, 
25  la.,  572. 

It  is  the  duty  of  the  court  to  instruct  the  jury  as  to  the 
issues  joined  in  the  pleadings,  and  to  determine  from  the 
pleadings  what  allegations  are  admitted  and  what  denied. 
Pharo  et  al.  vs.  Johnson^  15  la.,  560;  Potter  vs.  (7.,  P.  1.  (& 
P.  P.  Co.,  46  la.,  399;  Dossier  vs.   Wisley,  32  Mo.,  498. 

§  6.  Should  be  Clear,  Accurate  and  Concise.— Instructions 
should,  in  a  clear,  concise  and  comprehensive  manner,  inform 
the  jury  as  to  what  material  facts  must  be  found  in  order  to 
recover,  or  to  bar  a  recovery.  They  should  never  be  argu- 
mentative, equivocal  or  unintelligible  to  t lie  jury.  Moshier 
vs.  Kitchel,  87  III,  19;  Loeb  vs.  Wels,  64  Ind.,  285. 

Instructions  should  always  be  clear,  accurate  and  concise 
statements  of  the  law  as  applicable  to  the  facts  of  the  case. 
It  was  never  contemplated,  under  the  provision  of  the  practice 
act,  that  the  court  should  be  required  to  give  a  vast  number 
of  instructions,  amounting  in  the  aggregate  to  a  lengthy 
address;  such  a  practice  is  mischievous,  and  ought  to  be  dis- 
countenanced. A  few  concise  statements  of  the  law  appli- 
cable to  the  facts,  is  all  that  can  be  required,  and  all  that  can 
serve  any  practical  purpose  in  the  elucidation  of  the  case. 
Adams  vs.  Smith,  58  111.,  417;  Trlsh  vs.  Newell,  62  111.,  196; 
State  vs.  Mix,  15  Mo.,  153;  KrausYs.  Thieben,  15  111.  App., 
482. 

§  7.  Should  not  be  Argnmentative. — It  is  erroneous  to  give 
an  instruction  which  is  more  in  the  nature  of  an  argument 
than  a  statement  of  the  law  governing  the  case,  giving  undue 
prominence  to  facts  relied  upon,  and  reciting  facts  having  no 
tendency  to  support  the  theory  presented.  Ludwig  vs.  Sager, 
84  111.,  99;  Thorpe  vs.  Growey,  85  111.,  612;  Peijnolds  vs. 
Phillips,  13  111.  App.,  557;  Am.  B.  Soc.  vs.  Price,  115  111.,  628. 


1 6  '  INSTRUCTIONS. 

§  8.  Should  be  Conftneil  to  Matters  of  Law. — The  cliari^e  of 
the  court  to  the  jury  should  be  strictly  confined  to  matters  of 
law,  and  it  is  erroneous  for  the  judge  to  tell  the  jury  what 
facts  are  proved  and  what  are  not.  The  court  may  instruct 
the  jury  what  is  evidence,  but  not  what  it  proves.  Huss  vs. 
Steamboat^  etc.,  9  la.,  374;  Thompsoji  vs.  Hovey^  43  111.,  198; 
WamiocJc  vs.  Mayor^  etc.^  53  Ga.,  162. 

§  9.     Should  not  Submit  Questions  of  Law  to  the  Jury. — It  is 

error  to  give  instructions  to  the  jury  which  require  them  to 
find  and  determine  legal  propositions.  The  court  should 
direct  the  jury  what  the  law  is  on  the  facts  which  the  evi- 
dence tends  to  prove;  or  instruct  them  what  the  law  is,  if  they 
find  the  facts  to  be  as  alleged  or  claimed.  Mitchell  vs.  The 
Town  of  Fond  du  Lac,  16  111.,  174;  Hudson  vs.  St.  Louis,  etc., 
R.  Co.,  53  Mo.,  525;  Thomas  vs.  Thomas,  15  B.  Mon.,  178. 

When  it  appeared  that  there  was  a  verbal  contract  between 
the  plaintiff  and  another,  the  question  as  to  what  the  contract 
was,  was  one  of  fact  for  the  jury;  but  the  question  as  to  what 
the  legal  effect  of  it  was,  was  a  question  of  law,  and  it  was 
error  to  submit  both  these  questions  to  the  determination  of  a 
jury  by  instructions.  WhitevQ.  Murtland,  71  111.,  250;  Rohra- 
lacJcer  vs.  Ware,  37  la.,  85 ;  Lapeer,  etc.,  Ins.  Co.  vs.  Doyle,  30 
Mich.,  159. 

Whether  a  chattel  mortgage  is  proved  to  have  been  duly 
acknowledged  and  recorded  is  a  question  of  law  for  the  court, 
and  should  not  be  submitted  to  the  jury.  Bailey  vs.  Godfrey, 
54  111.,  507. 

In  an  action  against  a  railroad  company  for  damages  for  injury 
to  private  property  by  the  construction  of  its  road  upon  a  pub- 
lic street,  it  was  held  to  be  error  to  instruct  the  jury  to  deter- 
mine whether  the  company  had  constructed  more  tracks,  or 
u))on  different  lines,  than  were  authorized  by  the  city  ordi- 
nances. The  number  of  tracks  thus  authorized  was  a  ques- 
tion of  law,  respecting  which  the  court  should  have  determined 
the  legal  rights  of  the  parties.  Ingram  et  al.  vs.  The  C,  D. 
k  M.  R.  R.  Co.,  38  la.,  669. 

§  10.  The  Degree  of  Care  Required  in  a  Given  Case  is  a 
Question  of  Law. — The   law  prescribes  the  degree  of  care  re- 


THEIR   FORMS   AND    REQUISITES.  17 

qnired  in  every  class  of  cases — in  other  words,  whether,  in  a 
given  case,  a  person  is  required  to  exercise  slight  care,  reason- 
able care  or  the  utmost  care  and  diligence,  is  determined  by 
the  law,  and  is  to  be  declared  by  the  court;  whether  such  care 
has  in  fact  been  exercised  in  tlie  conduct  of  a  party,  in  a  given 
case,  is  a  question  of  fact  to  be  submitted  to  the  jury. 

In  an  action  to  recover  for  an  injury  caused  by  the  neg- 
ligence of  the  defendant,  an  insti-uction  on  the  part  of  the 
defendant  that  the  plaintiff  cannot  recover  unless  the  proof 
shows  that  by  the  exercise  of  due  or  pivjjer  care  he  could  not 
have  averted  the  injury,  is  erroneous,  as  it  submits  a  question 
of  law  to  the  jury  as  to  what  is  proper  care^  and  does  not  con- 
fine them  to  the  fact  whether  the  plaintiff  used  ordinary  care, 
\yhich  is  all  the  law  requires.  StniUoii  vs.  Ce7it.  Ciiq  Horse 
By.  Co.,  95  III,  25. 

§  11.     Abstract  Propositions  of  Law  Should  not  be  Given,  When. 

— Instructions  should  be  framed  with  reference  to  the  circum- 
stances of  the  case  on  trial,  and  not  be  expressed  in  abstract 
and  general  terms,  when  such  terms  maj-  mislead  instead  of 
enlightening  the  jury.  C.  &  A.  Ed:  Co.  vs.  Utley,  3S  111., 
410;  Parliman  vs.  Young,  2  Dak.,  175, 

Instructions  containing  mere  abstract  legal  propositions 
without  any  evidence  to  support  them,  are  calculated  to  mis- 
lead the  jury,  and  should  not  be  given.  Stein  vs.  The  Clty^ 
etc.,  41  la.,  353;  McNair  vs.  Piatt,  46  111.,  211. 

The  giving  of  an  instruction  stating  an  abstract  principle  of 
law  in  a  criminal  case  is  not  an  error,  unless  the  principle 
stated  is   erroneous.      TJjpstone  vs.  The  People,  109  III.,  169. 

§  12.  Shoukl  not  Ignore  Facts  Proven. — When  there  is 
evidence  tending  to  prove  a  fact  having  an  important  bearing 
upon  the  law  of  the  case,  though  strongly  contradicted,  an 
instruction  is  erroneous  which  ignores  the  existence  of  such 
fact,  and  takes  its  consideration  from  the  jury.  Chicago  P. 
&  P.  Go.  vs.  Tilton,  87  III.,  547. 

When  the  court  directs  the  attention  of  the  jury  to  the 
facts,  it  should  refer  them  to  all  the  facts  bearing  upon  the 
issues,  so  as  to  present  the  case  fairly  for  both  parties.  Cash. 
man  vs.  Cogswell,  86  111.,  62  ;  Snyder  vs.  The  State,  59  Ind.,105. 

'      2 


18  IKSTKCCTIOXS. 

An  insti'uctlon  wliicli  iindcrtakos  to  give  a  summary  of  tlio 
principal  facts,  but  directs  the  attention  of  the  jury  only  to 
those  favorable  to  one  of  the  parties,  leaving  out  of  view  all 
that  tends  to  illustrate  the  theory  of  the  other  party  is  objec- 
tionable. Eocins  vs.  Gaorgey  80  111.,  51;  Newma^i^  vs.  Mc- 
Comas,  43  Md.,  70. 

§  13.  Slioull  not  Give  unlue  Prominence  to  Portions  of  tlie  Evi- 
dence.— An  instruction  which  singles  out  and  gives  undue 
prominence  to  cei'tain  facts,  ignoring  other  facts  proved  and 
of  equal  importance  in  a  proper  determination  of  the  case,  is 
improper.  Calef  vs,.  Thompso ft,  '^IIW.,  478;  'WestcJieatcr  F. 
L  Co.  vs.  Earle,  33  Mich.,  143;  Jones  vs.  Jones,  57  Mo.,  138; 
Chose  vs.  Bahl  Iron  WorJcs,  55  Mich.,  139. 

§  14.     Should  not  Give  Prominence  to  Unimportant  Facts. — An 

instruction  which  calls  special  attention  to  particular  points  in 
the  evidence  which  are  indecisive,  and  mere  circumstances 
bearing  upon  an  issue  of  fact,  and  omits  all  reference  to  other 
important  circumstances  in  proof,  is  objectionable.  Graves 
vs.  CoUoell,  9u  111.,  012;  Chesney  v.  Meadows,  90  111.,  430. 

§  15.  Should  be  Given  when  there  is  any  Evidence,  etc. — ^When 
the  evidence  tends  to  ju-ove  a  certain  state  of  facts,  the  party 
in  whose  favor  it  is  given  has  a  right  to  have  the  jury  instruct- 
ed on  the  hypothesis  of  such  state  of  facts,  and  leave  it  to  the 
jury  to  find  whether  the  evidence  is  sutlicient  to  establish  the 
facts  supposed  in  the  instruction.  If  the  instructions  are  ])er- 
tinent  to  any  part  of  the  testimony,  they  should,  if  correct,  be 
given  without  regard  to  the  amount  of  evidence  to  which  they 
apply.  Griel  vs.  Marks,  51  Ala.,  566;  State  vs.  Gibhons,  10 
la.,  117;  Kendall  vs.  Brown,  74  111.,  232;  Jones  vs.  C  (&  iV. 
W.  R.  Co.,  49  Wis.,  352. 

"When  an  instruction  is  asked  upon  a  question  concerning 
which  there  is  no  direct  testimony,  yet  if  there  be  any  proof 
tending  to  establish  it,  such  question  should  be  submitted  to 
tho  jury,  as  the  party  asking  the  instruction  is  entitled  to  the 
bencHt  of  whatever  infei-ence  the  jury  may  think  proper  to 
draw  from  the  proof,  however  slight.  Peoria  Ins.  Co.  vs. 
Anajjow,  45    111.,   87;  Flournoy  vs.    Andrews,  5    Mo.,  513; 


THEIK   FORMS   AND   EEQUISITES.  19 

Camp  vs.  Phillips,  42  Ga.,  289;   C,  &  F.  J.  R.  B.  Co.  vs. 
Biiigenheimer,  116  111.,  226. 

§  IG.  Must  not  Assume  Facts  not  Admitted. — It  is  the  prov- 
ince of  the  court  to  instruct  the  jury  as  to  the  law  of  the  case, 
and  that  of  the  jury  to  lind  the  facts  proved  by  the  evidence. 
It  is  error  for  the  court,  in  giving  an  instruction,  to  assume 
that  facts  have  been  proved,  or  that  a  certain  state  of  facts 
exist.  liussell  vs.  Minteer,  83  111.,  150;  Siier  vs.  The  City, 
etc.,  41  la.,  353;  Slebert  vs.  Leonard,  21  Minn.,  442;  Jardieke 
vs.  Scropford,  15  Kans.  120;  C.  c&  A.  E.  R.  Co.  vs.  Robinson, 
106  111.,  142. 

Instances:  "  In  this  case  the  plaintiff  is  entitled  to  recover 
all  damages  proved  to  have  been  sustained  by  him  on  account 
of  the  trespass  committed  by  the  defendant  on  plaintiff's 
premises,  as  claimed  in  the  declaration."  Small  vs.  Brainerd 
44  111.,  355;  Boddie  vs.  State,  52  Ala.,  395;  N.  I.  Life  Ins. 
Co.,  94  U.  S.  Reports;  Pech  vs.  Rltchey,  68  Mo.,  114. 

"  If  the  jury  believe  from  the  evidence  that  Bond  and  Shinn 
were  together  and  acting  in  concert  at  the  time  of  the  assault, 
they  should  find  them  equally  guilty."  Bond  et  al.  v.  The 
People,  39  111.,  26. 

It  will  be  seen  that  in  the  first  of  these  examples,  it  is 
assumed,  as  a  fact,  that  a  trespass  had  been  committed,  and  in 
the  second,  that  an  assault  had  been  made. 

An  instruction  commencing,  "  We  will  now  direct  your 
attention  to  the  question  whether  the  defendant  gave  the 
deceased  strychnine  with  a  crimiifal  'ntent" — held  to  be  erro- 
neous, as  liable  to  be  understood  by  the  jury  to  assume  the 
disputed  point,  whether  he  gave  her  poison  at  all,  leaving  to 
them  only  the  question  of  intent.  Snyder  v.  The  State,  59 
Ind.,  105. 

§17.  Facts  not  Controverted  maybe  Assumed. — Wliere  an 
instruction  assumes  the  existence  of  a  fact  in  issue  by  the 
pleadings,  but  which  is  admitted  by  the  party  objecting  in  his 
testimony,  and  there  is  no  evidence  contradicting  such  admis- 
sion, there  will  be  no  material  error  in  giving  such  instruc- 
tion. Tleartt  vs.  Rhodes,  QQ  111.,  351;  ^\^eeks  vs.  Cottingham, 
58  Ga.,  559. 


20  INSTRUCTIONS. 

If  an  instruction  assumes  tlie  existence  of  facts  not  contro- 
verted on  the  trial,  and  which  under  the  circumstances,  if 
assumed,  could  not  prejudice,  there  will  be  no  error.  Miller 
vs.  Kirhj,  Ti  111.,  242;  Hughes  vs.  Monty,  24  la.,  499;  Davis 
vs.  The  People,  114  111.,  86. 

It  is  often  a  matter  of  convenience,  and  avoids  circumlocu- 
tion, to  assume  the  existence  of  certain  facts  about  which  the 
parties  are  agreed,  and  neither  party  under  such  circumstances 
can  afterwards  make  such  assumption  aground  of  objection  to 
the  instruction,     Martin  ^^.  The  People,  13  111.,  341. 

"When  all  the  evidence  on  both  sides  tends  clearly  to  prove 
a  fact,  and  if  true  does  prove  it,  and  there-  is  nothing  to  cast 
doubt  upon  it,  such  fact  may  and  generally  should  be  assumed 
as  proved  and  the  jury  told  that  there  is  no  evidence  from 
which  they  can  find  against  the  fact  as  proved.  Druse  vs. 
^Yheeler,  26  Mich.,  189;  Caldwell  vs.  Stephens,  57  111.,  589; 
Manrahan  vs.  The  People,  91  111.,  142;  Ilauh  vs.  Brownell, 
120  111.,  161. 

§  18.  Instructions  may  Assume  what  the  Law  Presumes. — 
When  the  circumstances  proved  are  of  such  a  character  that 
the  law  itself  raises  a  presumption,  the  court  may  properly 
instruct  the  jury  to  draw  such  inference.  Ilerlelrath  vs. 
StooTcey,  63  111.,  486;  Griffin  vs.  C.  R.  I.  &  P.  By.  Co.,  68  la., 
638;  27  K  W.  Kep.,  792. 

In  giving  instructions,  the  judge  should  always  abstain  from 
in  any  manner  indicating  an  opinion  as  to  the  weight  of  evi- 
dence, unless  it  is  of  that  character  which  the  law  deems  con- 
clusive.    Frame  vs.  Badger,  79  III.,  441. 

§  19.  AVlien  all  Material  Allegations  are  Proved. — Whenever 
all  the  material  facts  necessary  to  enable  the  plaintiff  to 
recover  are  averred  in  the  declaration,  it  is  not  improper  for 
the  court  to  instruct  the  jury  that,  if  the  facts  alleged  in  the 
declaration  liave  all  been  proved,  the  plaintiff  is  entitled 
to  recover,  unless  the  defendant  has  established  by  a  prepon- 
derance of  evidence  some  one  or  more  of  the  sjiecial  defenses 
pleaded.     Amer.  Cent.  Ins.  Co.  vs.  Pothschild,  82  111.,  166. 

An  instruction  which  tells  the  jury,  if  the  plaintiff  lias  made 
out  liis  case  as  laid  in  his  declaration,  they  must  Hud  for  the 


THEIR    FOKMS    AND    REQUISITES.  21 

plaintiff,  is  not  liable  to  the  objection  that  it  makes  the  jury 
the  judges  of  the  effectof  the  averments  in  the  declaration;  it 
merely  empowers  them  to  determine  whether  the  proof  intro- 
duced sustains  the  averments  made  in  the  pleadings,  which 
they  may  well  do.     0.  &  M.  By.  Co.  vs.  Porter,  132  111.,  437. 

§  20.  Constrnction  of  Contracts. — It  is  the  court  that  deter- 
mines the  construction  of  a  contract.  They  do  not  state  the 
rules  and  principles  of  law  by  which  the  jury  are  to  be  bound 
in  construing  the  language  which  the  parties  have  used  in  making 
the  contract.  They  give  to  the  jury  as  matters  of  law  what  the 
legal  construction  of  the  contract  is,  and  this  the  jury  are  bound 
absolutely  to  take.  Eijser  vs.  Weissgerher,  2  la.,  463;  Lowry  vs. 
Megee,  52  Ind.,  107;  Kamjphouse  vs.  Gaffner,  73  111.,  453; 
Curtis  vs.  Marts,  14  Mich.,  506;  W.  St.  L.  &  P.  Ry.  Co.  vs. 
Jaggermon,  115  111.,  407;  Gage  vs.  Meyers,  59  Mich.,  300. 

What  the  terms  of  a  contract  are  (if  not  in  writing)  is  a 
question  of  fact  for  the  jury,  but  its  meaning  and  legal  effect 
are  questions  of  law  for  the  court.  Therefore  it  is  not  proper 
in  an  instruction  to  submit  to  the  jury  the  question  of  a  party's 
rights  under  a  contract.  Goddard  vs.  Foster,  17  Wall.,  123; 
ThomasvS).  Thomas,  15  B.  Mon.,  178;  Belden  vs.  Woodmansee, 
81  111.,  25;  Lucas  vs.  Snyder,  2  G.  Gr.,  499. 

Where  a  register's  certificate  of  purchase  was  given  in  evi- 
dence, it  was  held  proper  to  instruct  the  jury  that  the  certifi- 
cate was  evidence  of  title  in  the  person  to  whom  it  was  issued, 
and  that  a  judgment  and  execution  against  such  jierson,  to- 
gether with  a  sheriff's  deed  thereunder,  conveyed  the  title  to 
the  grantee  therein.  While  instructions  should  not  assume 
the  existence  of  facts,  still  it  is  proper  for  the  court  to  direct 
the  jury  as  to  the  legal  effect  of  the  evidence  admitted. 
Strihling  vs.  Prettyman,  57  III,  371;  State  vs.  Delong,  12  la., 
453. 

If  a  contract  is  ambiguous  in  its  terms  it  is  the  duty  of  the 
court  to  determine  what  it  means  from  the  evidence,  and 
instruct  the  jury  as  to  its  meaning.  Ogdeii  vs.  Kirhy,  79  III., 
555;  Stadden  vs.  Ilazzard,  37  Mich.,  76;  Am.  Ins.  Co.  vs. 
Butler,  70  Ind.,  1. 

AVhile  instructions  should  not  assume  the  existence  of  facts, 
Vv'hich  must  be  found  by  the  jury,  still  it  is  proper  for  the 


22  INSTKUCTIONS. 

court  to  direct  tlic  jury  as  to  the  legal  effect  of  dociimentarj 
evidence  admitted.  Stribling  vs.  Prettyman^  57  111.,  371; 
Hanson  vs.  Eastman,  21  Miun.,  hO^;  Lowry  \B.Megee,  52  Ind., 
107. 

§  21.  Slionld  be  Confined  to  the  Issues  Being  Tried. — The  in- 
structions of  the  court  should  be  restricted  to  the  issues  made 
by  the  pleadings,  and  to  the  evidence.  Nollen  vs.  ^Ylsner  et 
al.,  11  la.,  190;  Iron  Mount.  Bank  vs.  IlurdocJc,  62  Mo.,  70; 
Hall  vs.  Strode,  28  K  W.  Rep.,  312. 

When  the  declaration  alleges  the  personal  negligence  of  the 
defendant  as  the  ground  of  liability,  it  is  a  fatal  objection  to 
the  instructions  that  they  direct  the  attention  of  the  jury  to 
other  and  different  elements  of  liability.  Ch.  <£  Alt.  M.  li. 
Co.  vs.  Ifoch,  72  111.,  141;  Cohan.,  C.  &  L  E.  R.  Co.  vs. 
Troesch,  68  111.,  545. 

When  the  i^laintiff  declai-es  upon  a  completed  sale,  it  is 
erroneous  for  the  court,  in  instructing  for  him,  to  submit  to 
the  jury  the  question  of  an  executory  contract  of  sale.  Seckel 
vs.  Scott,  m  111.,  106. 

In  an  action  on  a  warranty  it  would  be  error  for  the  court 
to  instruct  tlie  jury  as  to  what  acts  constitute  fraud.  Wallace 
vs.   Wren,  32  111.,  146. 

Wliere  in  an  action  upon  an  alleged  express  contract,  evi- 
dence was  introduced  without  objection,  putting  the  fact  of 
such  contract  in  issue,  it  was  held  not  to  be  error  to  instruct 
tlie  jury  with  reference  to  an  express  contract,  even  though 
the  pleadings  put  iir  issue  an  implied  contract  only,  llogers 
vs.  Millard,  44  la.,  466. 

§  22.  Should  be  Based  on  the  Evidence. — The  instructions  in 
all  cases  should  be  based  on  the  evidence,  and  not  on  the  facts 
of  which  there  is  no  evidence.  Eli  vs.  Tallman,  14  Wis.,  28; 
Hill  vs.  Canfield,  56  Penn.  St.,  454;  Hoioe  S.  Mch.  Co.  vs. 
0.  Laymen,  88  111.,  39;  Atkins  vs.  Nicholson,  31  Mo.,  488. 

An  instruction  is  properly  refused  when  there  is  no  evi- 
dence tending  to  prove  the  hypothetical  state  of  facts  to 
which  it  relates.  C,  B.  &  Q.  R.  R.  Co.  vs.  Dickson,  88  111., 
431. 

It  is  error  to  give  an  instruction   denying  a  party's  right 


THEIR    FOKMS    AND    REQUISITES.  23 

uyton  an  assumed  state  of  facts  not  shown  by  the  evidence, 
and  calculated  to  give  the  jury  to  understand  that,  as  a  matter 
of  law,  the  party  under  the  contract  was  bound  in  a  certain 
way  not  shown  by  the  evidence.  Harrison  vs.  Caehelin^  27 
Mo.,  26;  J^rantzws.  Rose,  89  III.,  590;  SwarJc  vs.  Mchols,  24 
Ind.,  199;  Borjie  vs.  Kreitzer,  46  Penn.  St.,  465. 

An  instruction,  in  an  action  of  trespass  for  an  assault  and 
battery,  that  the  juiy  is  tlie  sole  judge  of  the  amount  of  dam- 
ages that  the  plaintitf  should  recover,  without  stating  that  the 
damages  should  be  estimated  from  the  evidence,  is  erroneous. 
Martin  vs.  Johnson,  89  111.,  537. 

The  jury  should  not  be.  instructed  in  an  action  of  trespass, 
that  they  may  give  punitive  damages  if  they  believe  from  the 
evidence  the  trespass  was  committed  wantonly  or  willfully, 
where  there  are  no  circumstances  of  wantonness  or  willfulness 
to  warrant  such  an  instruction.  ^Yaldron  vs.  Marcier,  82  111., 
550;    WengerxQ.  Calder,  78  111.,  275. 

It  is  error  to  tell  the  jury  that  it  is  their  duty  to  assess 
damages  if  they  believe  in  certain  facts.  Whether  a  plaintiff 
has  sustained  damages,  and  if  so,  liow  much,  is  a  question  to 
be  determined  by  the  jury  ;  and  it  is  projier  for  the  court  to 
instruct  them  that  if  they  believe  certain  facts  they  may, 
or  they  are  at  liberty  to,  assess  damages,  but  not  that  it  is 
their  duty  to  do  so.  Chi.  and  iV.  W.  Ry.  Co.  vs.  Ckisholm^ 
79  111.,  584. 

§  23.  One  Tnstrnotion  may  be  Limited  by  Others. — Although 
an  instruction,  considered  by  itself,  is  too  general,  yet,  if  it  is 
properly  limited  by  others  given  on  the  other  side,  so  that  it 
is  not  probable  it  could  have  misled  the  jury,  judgment  will 
not  be  reversed  on  account  of  such  instruction.  Carrington 
vs.  r.  M.  S.  S.  Co.,  1  Cal,  475 ;  Edwards  vs.  Cary,  60  Mo., 
572  ;  Kendall  vs.  Brown,  86  111.,  387;  Skiles  vs.  Caruthers, 
88  111.,  458. 

§  24.  S!ioiilil  be  Considered  All  Together.— It  is  the  duty  of 
the  jury  to  consider  all  the  instructions  together,  and  when  this 
court  can  see  that  an  instruction  in  the  series,  although  not 
stating  the  law  correctly,  is  qualified  by  others,  so  that  the  jury 
were  not  likely  to  have  been  misled,  the  error  will  be  obviated. 


24  IKSTEUCTIONS. 

Anderson  vs.  ]VaIte)\  oi  Mich.,  113.  State  vs.  Doiiavan^  10 
I^eb.,  3G. 

A  charge  to  the  juiy  must  be  taken  together,  and  it  is  not 
necessary  to  insert  in  each  separate  instruction  all  the  ex- 
ceptions, limitations  and  conditions  which  are  inserted  in  the 
charge  as  a  whole.     People  vs.  Cleveland, _  49  Cal.,  578. 

All  the  instructions  should  be  considered  together,  and  a 
judgment  will  not  be  reversed  because  some  one  of  them  fails 
to  state  the  law  applicable  to  the  facts  with  sufficient  qualifi- 
cation, provi>ied  tlie  defects  be  cured  in  other  instructions. 
Rice  vs.  The  City,  etc.,  40  Iowa,  638;  The  State  vs.  Maloy, 
44  Iowa,  104. 

§  25.  Error  will  not  Always  Reverse. — Where  it  appears, 
from  the  evidence,  that  a  verdict  is  so  clearly  right  that  had 
it  been  different  the  courts  should  have  set  it  aside,  such 
verdict  will  not  be  disturbed  merely  for  the  reason  that  there 
is  error  found  in  the  instruction.  Lnndy  vs.  Pierson,  83  111., 
241;  Burling  vs.  111.  Cent.  Pul.  Co.,  85  111.,  18;  Phillips  vs. 
Ocmulgee,  etc.,  55  Ga.,  633  ;  People  vs.  Welch,  49  Cal,  177. 

The  refusal  of  instructions,  which,  though  containing  correct 
propositions,  could  not,  in  view  of  all  the  facts  developed 
by  the  evidence,  have  prejudiced  the  party  complaining,-  will 
not  operate  to  reverse  the  case.  Cross  vs.  Garrett,  35  Iowa, 
480;   Coolc  et  al.  vs.  Pohinson,  42  Iowa,  474. 

§  26.     ^Eiist  be  Constraed  in  Connection  with  the  Evidence. — A 

charge  given  by  the  court  must  be  construed  in  connection 
with  the  evidence  in  the  case.  It  is  sufficient  if  the  instruc- 
tions are  correct  when  considered  with  reference  to  the  case 
iijion  trial  and  the  facts  sought  to  be  established.  State  vs. 
Downer,  21  "Wis.,  275;  Huffman,  vs.  AcJdey,  34  M.O.,  277. 

§  27.  When  Error  will  Reverse. — When  a  case  is  close  in  its 
lacts,  or  when  there  is  a  conflict  in  the  evidence  on  a  vital 
point  in  the  case,  the  rights  of  parties  cannot  be  preserved 
unless  the  jury  are  accurately  instructed.  Toledo,  etc.,  Ry.  Co. 
vs.  Shuclcman,  50  Ind.,  42;  Wabash  Rd.  Co.  vs.  HenA's,  91  111., 
406. 

An  instruction  which  has  a  tendency  to,  and  probably  did, 
mislead  the  jury  when  taken  singly,  is  erroneous,  even  though 


THEIR    FOEJIS    AND    KEQUISITKS.  2o 

the  instnictlons,  Avlicn  taken  togctlier,  embrace  tlic  law  of  the 
case.  Price  ^•s.  Mahoneij,  24  Icnva,  582 ;  Pittshurg,  etc.,  Bi/. 
Co.  vs.  Krouse,  20  Ohio  St.,  223;  Macl'ey  vs.  Peojple,  2  Col. 
T.,  13;  Murray  vs.  Com.,  79  Pu.  St.,  311. 

§  28.  Shojild  1)0  Harinonious. — The  giving  of  a  correct  instrnc- 
iion  upon  a  point  in  the  cate,  will  not  obviate  an  error  in  an 
instruction  on  the  other  side,  when  they  are  entirely  variant 
and  there  is  nothing  to  show  the  jury  which  to  adopt.  111. 
Linen  Co.  vs.  Hough,  91  111.,  G3  ;  Yanslyck  vs.  Mills  et  al.,  34 
Iowa,  375. 

One  correct  instruction  will  not  always  cure  an  erroneous 
one.  The  court  should  harmonize  the  instructions,  else  they 
are  calculated  to  confuse  and  mislead  the  jury.  Qiiinn  vs. 
'  Donovan,  85  111.,  194. 

Where  one  instruction  states  the  defendant's  liability  more 
strongly  tlian  the  law  warrants,  and  another  of  the  series  states 
it  correctly,  and  the  two  instructions  relate  to  vital  points  in 
issue,  they  are  calculated  to  confuse  the  jury,  and  the  latter 
instruction  will  not  cure  the  error.  Steinmeyer  vs.  TJie  Peo- 
2?le,  95  111.,  383. 

§  29.  Instructions  must  Require  the  Jury  to  Believe  from  the  Evi- 
dence.— An  instruction  which  does  not  require  the  jury  to 
"believe  from  the  evidence"  the  facts  assumed  in  it,  is  objec- 
tionable, even  if  the  law  in  the  instruction  is  correctly  stated. 
ParJier  vs.  Fisher,  39  111.,  164. 

It  is  not  necessary  that  a  jury  should  be  told  in  each  sentence 
of  an  instruction  that  they  should  believe  from  the  evidence. 
If  the  lirst  ]iart  of  the  instruction  contains  this  clause  a  jury 
of  intelligent  men  will  not  be  misled  if  it  is  omitted  in  the 
remaining  portion.     Gizler  vs.   ^Vitzel,  82  111.,  322. 

It  is  error  to  instruct  the  jury  that  it  is  necessary  for  the 
plaintiff  to  prove  a  material  fact,  or  that  it  should  be  made  to 
appear  from  the  evidence  ''  to  the  satisfaction  of  the  jury!'"' 
The  jury  in  a  civil  case  are  to  decide  facts  upon  the  weight  or 
preponderance  of  the  evidence,  even  though  the  proof  does 
not  show  such  facts  to  their  satisfaction.  Stratton  vs.  Cent. 
City  Horse  By.  Co.,  95  III.,  25. 


26  IKSTKUCTIONS. 

§  30.  Instructions  Need  not  be  Repeated,  When. — When  the  law 
applicable  to  a  case  is  given  in  clear  and  intelligible  language, 
the  sole  function  of  instructions  is  performed,  and  there  is  no 
necessity  for  repeating  the  same  idea  in  ditferent  instructions, 
varying  only  in  form.  The  court  is  not  only  under  no  obliga- 
tion to  ])ermit  a  case  to  be  argued  through  instructions,  but  it 
is  bound  to  prohibit  it.  A?u/e/'son  vs.  Walter,  34:  Mich.,  113; 
Keelep  vs.  Siiipj)e,  86  111.,  309;  I.  &  C.  R.  Co.  vs.  Ilorst,  93 
U.  S.,  91. 

The  right  of  a  party  to  ask  instructions  must  have  some 
limit,  and  the  supreme  court  will  not  sustain  an  abuse  of  this 
right.  Fisher  vs.  Stevens,  16  111.,  397;  ^Vri<Jht  vs.  Ames,  28 
Minn.,  362. 

It  is  not  erroneous  to  refuse  to  give  instructions  asked  for, 
however  correct  or  applicable,  if  they  have  in  substance 
already  been  given  in  the  charge  of  the  court.  State  vs. 
Stanley,  33  la.,  526;  Cramer  vs.  The  City  of  Burlington,  43 
la.,  315;  Scott  vs.  Delaney,  87  111.,  146;  Crisman  vs.  McDon- 
ald, 28  Ark.,  8;  Olive  vs.  The  State,  11  :N'eb.,  1. 

§  31.  Instnicting  as  in  Case  of  Nonsuit. — It  is  not  the  prov- 
ince of  the  court  to  decide  upon  the  sufficiency  of  the  testi- 
mony pertaining  to  the  facts  in  the  case,  nor  to  order  the  jury 
upon  the  facts  to  find  for  either  party.  Oleson  vs.  Hendrich- 
son,  12  la.,   222;   RoUnson  vs.  El.  C.  R.  R.  Co.,  30  la.,  401. 

It  is  the  settled  practice  never  to  instruct  the  jury  as  to  the 
weight  of  evidence.  When  conflicting,  or  tending  to  prove 
the  issue,  however  slightly,  it  must  be  left  to  tlie  consideration 
of  the  jury.  But  when  it  essentially  varies  from  the  plead- 
ings and  fails  to  sustain  the  issue,  the  court  may,  and  should 
when  asked,  exclude  it  from  the  consideration  of  the  jury. 
Excluding  the  evidence  amounts  to  the  same  thing  as  instruct- 
ing the  jur}'  to  find  for  the  defendant,  as  either  course  pro- 
duces the  same  result.     House  vs.  Wilder,  47  111.,  510. 

Where  there  is  any  one  essential  allegation  of  a  declaration 
whicli  has  no  pi-oof  tending  to  support  it,  it  is  the  duty  of  the 
court  to  exclude  from  the  consideration  of  the  jury  all  the 
evidence  in  the  case,  or  to  charge  the  jury  that  there  is  no 
evidence  to  support  such  essential  allegation,  and,  for  want  of 
Buch  proof,  to  find  for  the  defendant.     Whether  there  is  any 


THEIR    FOEMS    AND    REQUISITES.  27 

cvidcncG  tending  to  prove  any  material  allegation  of  a  decla- 
ration is  a  question  of  law  for  the  court  to  determine.  Pole- 
vian,  vs.  Johnson^  84  111.,  269. 

Contra:  When  there  is  no  conflict  in  the  evidence,  the 
court  may  direct  the  verdict  or  order  a  nonsuit.  Greeniiuj 
vs.  Bishop,  39  "Wis.,  552;  Johnson  vs.  Moss,  45  Cal.,  515; 
Kelly  vs.  Ilendricl's,  26  Mich.,  256;  Am.  Ins.  Co.  vs.  Butler. 
70  Ind.,  1. 

Where  there  is  a  mere  scintilla  of  evidence  to  establish  a 
fact  and  the  evidence  is  so  overwhelmingly  against  it  that  the 
court  would  set  aside  the  finding  of  a  jury,  if  based  upon  such 
fact,  then  the  question  of  the  existence  of  such  "fact  need  not 
be  submitted  to  the  jury.  Ilogan  vs.  Ciishing,  49  Wis.,  169; 
Co7n.  of  Marion  Co.  vs.  ClarJc,  94  U.  S.,  278;  May  vs.  /.  C. 
E.  Co.,  35  la.,  585. 

§  32.  Error  in  Admitting  Evidence,  Obviated  by. — If  incom- 
petent evidence  is  permitted  to  be  introduced,  which  the  court 
afterwards  instructs  the  jury  not  to  consider,  no  prejudice  is 
wrought  by  its  introduction.  Cooli  et  al.  vs.  Robinson,  42  la,, 
474. 

§  33.  When  not  Obviated  by. — An  error  in  the  admission 
of  evidence  is  not  obviated  by  an  instruction  to  disregard  such 
evidence,  unless  the  case  is  such  that  it  clearly  appears  no 
injustice  or  wrong  has  been  done  to  the  partv  complaining. 
Hoioe,  etc.,  Co.  vs.  Rosine,  87  111.,  105. 

§  34.  Effect  of  Evidence,  Limited  by. — If  evidence  is  admitted 
competent  for  one  purpose  which  may  have  an  improper 
effect,  the  party  aggrieved  sliould  ask  an  instruction  explain- 
ing its  legitimate  effect.  Prior  vs.  White,  12  111.,  261;  Allison 
vs.  C.  &  N.  W.  R.  R.  Co.,  42  la.,  274. 

Evidence  admitted  without  objection  cannot  be  excluded 
from  the  consideration  of  the  jury  by  instructions.  Becker 
vs.  Becker,  45  la.,  239. 

Instructing  that  Evidence  Tends  to  Prove. — An  instruction 
which  tells  the  jury  that  they  may  consider  certain  evidence  as 
tending  to  prove  a  particular  fact,  making  no  comment  as  to 


2S  INSTKUCTIONS. 

its  weight  orefiFect,  is  not  for  that  reason  improper.     Bcattle 
V.  mil,  60  Mo.,  72. 

§  35.  Tlie  Jury  3Iay  Come,  in  for  Further  Instructions. — A  jury 
inay  h(i  called  into  court  for  further  instructions,  either  by 
agreement  of  counsel,  or  at  their  own  request.  State  vs. 
Pitts,  11  la.,  343;  Lee  vs.  Quirli,  20  111.,  392;  O'Shields  vs. 
State,  55  Ga.,  696;  J^arley  vs.  State,  57  Ind.,  331. 

If  the  jury  should  find  an  insufficient  verdict,  the  court  may 
send  them  out  under  instructions  to  find  formally  and  fully, 
so  as  to  determine  the  rights  of  the  parties.  Flinn  vs.  Bar- 
low, 16  111.,  39. 

§  36.  The  Givin,2:  of  Further  Instructions  is  in  the  Discretion  of 
the  Court. — When  the  jury,  in  a  criminal  case,  return  into  court 
and  say  that  they  cannot  agree,  it  is  competent  for  the  court, 
of  its  own  motion,  to  give  them  any  additional  instruction, 
proper  in  itself,  which  may  he  necessary  to  meet  the  difficulties 
in  their  minds.  State  vs.  Pitts,  11  la.,  313;  Hogg  vs.  State,  7 
Ind.,  551. 

A  fresh  discussion  of  the  law  or  the  evidence,  on  the  part  of 
counsel  in  the  presence  of  the  jury,  cannot  be  had,  unless 
allowed  by  the  judge,  in  his  discretion;  nor  is  the  judge 
required  to  give  additional  instructions  at  the  request  of  either 
l^arty.  In  such  matters  much  must  be  left  to  the  discretion  of 
the  judge.     Nelson  vs.  Dodge,  116  Mass..  367. 

After  a  jury  retire  to  consider  their  verdict  and  come  into 
court  for  further  instructions,  it  is  irregular  to  give  such 
instructions  in  the  absence  of  a  party.  Davis  vs.  Pish,  2  G.  Gr.. 
417;  O'Connor  vs.  Guthrie  et  al.,  11  la.,  80;  Campbell  vs. 
Beclcett,  8  Ohio  State,  210;  Ilolerg  vs.  State,  3  Minn.,  262. 

§  37.  Court  May  Tjiniit  tlie  Time^for  Instructions. — Circuit 
courts  have  the  i)Ower,  by  reasonable  and  projjer  rules,  to  pre- 
scribe within  what  time,  during  the  progress  of  tlie  trial,  tlie 
instructions  must  be  pj-esented  to  the  court.  P'rindiville  vs. 
The  People,  42  111.,  217. 

§  38.  In  Criminal  Cases  the  Jury  are  the  Judges  of  the  Law  as  well 
as  of  the  Facts  of  the  Case. — In  some  states. — Wliile  it  is  true,  in 


TIIEIK    FOIIMS    AND    REQUISITES.  29 

the  fullest  sense,  that  a  jury,  in  a  criminal  case,,  are  tlie  judges 
both  of  the  fact  and  of  the  law,  and  may  be  so  instructed  by 
the  court,  they  should  then  be  left  to  their  own  responsibility 
alone  to  decide  on  the  guilt  or  innocense  of  the  prisoner, 
giving  him  the  beneft  of  all  reasonable  doubts,  without  any 
reference  to  the  possible  future  action  of  the  court.  Folk  vs. 
The  People,  42  111.,  331;  Scknier  vs.  The  People,  23  111.,  17. 

In  the  case  of  Schnier  vs.  The  People,  the  court  qualified 
tlie  general  instruction  that  "  the  jury  are  the  judges  of  the 
law  as  well  as  of  the  facts,"  as  follows: 

"  If  the  jury  can  say  upon  tlieir  oaths  that  they  know  the 
law  better  than  the  court  does,  they  have  the  right  to  do  so; 
but  before  assuming  so  solemn  a  responsibility  they  should  be 
sure  that  they  are  not  acting  from  caprice  or  prejudice;  that 
they  are  not  controlled  by  their  will  or  their  wishes,  but  from 
a  deep  and  confident  conviction  that  the  court  is  wrong  and 
that  they  are  right.  Before  saying  this  upon  their  oaths  it  is 
their  duty  to  reflect  whether,  from  their  habits  of  thought, 
their  study  and  experience,  they  are  better  qualified  to  judge 
of  the  law  than  the  court.  If,  under  all  these  circumstances, 
they  are  prepared  to  say  that  the  court  is  wrong  in  its  exposi- 
tion of  the  law,  the  statute  has  given  them  the  right." 
Schnier  vs.  The  People,  23  111.,  17.  See,  also,  Mullinix  vs. 
The  People,  76  111.,  211. 


CHAPTER  II. 


CREDIRILITT  OF  WITNESSES  AND  WEIGHT  OF  TESTIMONY INSTKUC- 

TIONS  APPLICABLE  TO  BOTH  CIVIL  AND  CRIMINAL  CASES. 

Sec.     1.     Credibility  of   witness  and  weight  of   testimony — Questions  for 
the  jury. 

2.  Circumstances  affecting  the  credit  of  the  witness. 

3.  One  credible  witness  entitled  to  more  credit   than  a   number  of 

others. 

4.  The  jury  have  no  right  to  disregard   the  testimony  of  a  witness 

without  cause. 

5.  The  credit  of  a  witness  depends  upon  two  things. 

6.  When  the  jury  may  disregard  the  testimony  of  a  witness. 

7.  Tlie  jury  should  reconcile  the  testimony  if  possible. 

8.  A  fact  is  proved  if  it  can  be  reasonably  inferred. 

9.  Willfully  swearing  falselv. 

10.  Impeachment  of  witnesses. 

11.  Bad  reputation  for  truth. 

12.  Different  statements  out  of  court. 

13.  Contradictory  statements  out  of  court. 

14.  Contradictory  statements  out  of  court,  explained. 

15.  Preponderance  of  the  evidence. 

16.  Jury  need  not  disregard  the  testimony  of  an  impeached  witness. 

17.  Negative  evidence,  what    is     not— Affirmative     and    negative 

testimony. 

18.  Proof  as  to  dates — Testimony  as  to,  corroborated. 

19.  Burden  of  proof. 

20.  Parties. 

21.  Testimony  of  parties  to  be  weighed  by  the  jury. 

22.  Party  failing  to  testJfy. 

23.  Corporation,  witnesses  for— How  to  be  regarded. 

24.  Suits  against — To  be  tried  the  same  as  others. 

25.  Verbal  admissions — How  weighed. 

26.  Admissions,  all  to  be  considered  together— Jury  may  believe  part 

and  reject  part. 

27.  Admissions  to  be  taken  all  together— How  to  be  weighed. 

28.  When  party  not  estopped  by. 

29.  Offer  to  compromise — Party  not  bound  by. 

30.  Continuance  affidavit— Admissions  in,  how  treated. 

31.  Party  not  bound  by  statements  of  his  own  witnesses. 

32.  Verdict  to  be  determined  by  the  evidence  alone. 

33.  Statemeiits  of  counsel. 

34.  Witness  excased  from  answering. 

(30) 


CKEDI13ILITY    OF   WITNESSES.  31 

CEEDIBILITr  OF  WITNESSES. 


§  1.  The  Credibility  of  the  Witnesses  and  the  Weight  of  the 
Testimony  are  Questions  of  Fact  for  the  Jury. — The  court  instructs 
the  jury,  that  the  credibility  of  the  witnesses  is  a  question 
exchisively  for  the  jury;  and  tlie  law  is,  that  where  a  number 
of  witnesses  testify  directly  opposite  to  each  other,  the  jury 
are  not  bound  to  regard  the  weight  of  the  evidence  as  evenly 
balanced.  The  jury  have  a  right  to  determine  from  the  appear- 
ance of  tlie  witnesses  on  the  stand,  tlieii-  manner  of  testifying, 
their  apparent  candor  and  fairness,  their  apparent  intelligence, 
or  lack  of  intelligence,  and  from  all  the  other  surrounding 
circumstances  appeai-ing  on  the  trial,  which  witnesses  are  the 
more  worthy  of  ci'edit,  and  to  give  credit  accordingly.  Wal- 
lace ys.  State,  28  Ark.,  531;  Ilalloivai/vs.  Co7ii.,  11  Bush,  341; 
jStamj)o/sH  vs.  Steffens,  79  111.,  3U3,  State  vs.  Shields,  55 
Conn.,  256;  Shellaharger  vs.  JSFefas,  15  Kan.,  547;  BaUoway 
vs.  Co7n.,  12  Bush,  334;  //.  P.  By.  Co.  vs.  Ward,  4  Colo.,  37; 
Winchester  vs.  King,  48  Mich.,  280. 

You  are  the  jftdges  of  the  credibility  of  the  witnesses,  and 
of  the  weight  to  be  attached  to  the  testimony  of  each  and  all 
of  them;  and  you  are  not  bound  to  take  tlie  testimony  of  any 
witness  as  absolutely  true,  and  you  should  not  do  so,  if  yoa 
are  satisfied  from  all  the  facts  and  circumstances  proved  on 
the  trial,  that  such  witness  is  mistaken  in  the  matters  testi- 
fied to  by  him,  or  that,  for  any  other  reason,  his  testimony  is 
untrue  or  unreliable.  Jxavariaugh  vs.  Wilso7i,  70  K.  Y.,  177; 
Taylor  vs.  Randall,  3  Colo.,  401. 

You  are  instructed,  that  you  are  the  judges  of  the  credit 
that  ought  to  be  given  to  the  testimony  of  the  different  wit- 
nesses, and  you  are  not  bound  to  believe  anything  to  be  a  fact 
because  a  witness  has  stated  it  to  be  so — provided  you  believe, 
from  all  the  evidence,  that  such  witness  is  mistaken  or  has 
knowingly  testified  falsely.  Durant  vs.  The  Peovle,  13  Mich., 
351;  See   Wanchette  vs.  WanJess,  3  Colo.,  174. 

§  2.     Circumstanees    Affecting    the    Credit  of  a  AVitness. — The 

jury  are    instructed    that,  in   determining  the   weight    to   be 
given  to  the  testinionj^  of  the  different  witnesses  in  this  case, 


S2  ■WEIGHT    OF   TESTlilONY. 

tlie  jury  are  authorized  to  consider  the  relationship  of  the 
witnesses  to  the  parties,  if  the  same  is  proved;  their  interest, 
if  any,  in  the  event  of  the  suit;  their  temper,  feeling  or  bias, 
if  any  has  been  shown;  their  demeanor  while  testifying  ;  their 
apparent  intelligence,  and  their  means  of  information;  and  to 
give  such  credit  to  the  testimony  of  each  witness  as,  under  all 
the  circumstances,  such  witness  seems  to  be  entitled  to.  Atr- 
merman  vs.  Teetei\  49  111.,  400;  Zampe  vs.  Kennedy^  60  "Wis., 
110. 

In  determining  the  issues  in  this  case,  we  should  take  into 
consideration  the  whole  of  the  evidence,  and  all  the  facts  and 
circumstances  proved  on  the  trial,  giving  to  the  several  parts 
of  the  evidence  such  weight  as  you  think  they  are  entitled  to. 
And  in  determining  the  weight  to  be  given  to  the  testimony 
of  the  several  witnesses,  you  sliould  take  into  consideration 
their  interest  in  the  event  of  the  suit,  if  any  such  is  proved  ; 
their  conduct  and  demeanor  while  testifying  ;  their  apparent 
fairness  or  bias,  if  any  such  appears  ;  their  appearance  on  the 
stand ;  the  reasonableness  of  the  story  told  by  them  ;  and  all 
the  evidence  and  circumstances  tending  to  corroborate  or  con- 
tradict such  witnesses,  if  any  such  are  proved.  £vans  vs. 
Lipscomb,  31  Ga.,  71;  FrencJi  vs.  Millard.,  2  Ohio  St.,  44  ; 
8ellar  vs.  Clelland,  2  Colo.,  539. 

The  court  instri.cts  you,  that  in  passing  upon  the  testimony 
of  the  witnesses  for  the  defendant,  you  have  a  right  to  take 
into  consideration  any  interest  which  such  witnesses  may  feel 
in  the  result  of  this  suit,  if  any  is  proved,  growing  out  of  their 
relationship  to  the  defendant  or  otherwise,  and  to  give  to  the 
testimony  of  such  witnesses  only  such  weight  as  you  think  it 
entitled  to,  under  all  the  circumstances  proved  on  the  trial. 

If  you  believe,  from  the  evidence,  that  any  witness  has 
testified  under  a  fear  of  losing  his  employment  or  a  desire  to 
avoid  censure  or  a  fear  of  offending,  or  a  desire  to  please  his 
employer,  then  such  fact  may  be  taken  into  account  by  you  in 
determining  the  degree  of  weight  which  ought  to  be  given  to 
the  testimony  of  such  witness  ;  and,  in  such  case,  you  have  a 
right  to  judge  of  the  effect,  if  any,  likely  to  be  produced  upon 
the  human  mind  by  such  feelings  or  motives,  and  how  far 
such  feelings  or  motives,  on  the  ]:art  of  a  witness,  may  tend  to 
warp  his  judgment  or  pervert   the  truth;  and,  after  applying 


^ 


CKEDiaiLlTY    OF   WITNESSES.  33 

yunr  own  knowledge  of  human  nature  and  of  llio  plulosop]i3'' 
of  tlie  human  mind  to  the  investigation  of  the  subject,  are  to 
judge  of  tlie  weight  which  ought  to  be  given  to  the  testimony 
of  such  witness,  taking  tlie  same  in  connection  with  all  the 
other  evidence  in  the  case. 

AVhen  witnesses  are  otherwise  equally  credible,  and  their 
testiniony  otherwise  entitled  to  equal  weight,  greater  weight 
and  credit  should  be  given  to  those  whose  means  of  informa- 
tion were  superior;  and  also  to  those  who  swear  affirmatively 
to  a  fact,  rather  than  to  those  who  swear  negatively,  or  to  a 
want  of  knowledge  or  want  of  recollection.  Pool  vs.  Devers^ 
30  Ala.,  672;  Blizzard  vs.  Applegate^  61  Ind.,  368. 

In  weighing  the  testimony  of  any  or  either  of  the  witnesses 
in  this  case,  you  may  regard  the  apparent  capacity  and  intel- 
ligence of  such  witness,  and  judge  from  the  evidence  whether 
he  was  able  to  see  and  understand  the  transaction,  and  alsc- 
whether  he  was  attentive  or  careless,  or  apparently  prejudiced 
or  dispassionate;  and  also  wliether,  jutlging  from  the  evidence, 
he  has  any  sinister  motive  that  might  lead  liim  to  fabricate 
that  wliicli  he  did  not  see.  People  vs.  Bocline,  1  Edm.  Sel. 
Cas.,  36. 

§  3.     One  Crertible  Witness  may  be  Entitled  to  More  Credit  tlian    ' 
a  Number  of  Others. — The  court  instructs  you  that  the  testimony    \ 
of  one  credible  witness  may  be  entitled  to  more  weight  than 
the  testimony  of  many  others,  if,  as  to  those  other  witnesses, 
you  have  reason  to  believe,  and  do  believe,  from  the  evidence     | 
and  all  the  facts  before  you,  that  such  other  witnesses  have     1 
knowingly  testified  untruthfully,  and  are  not  corroborated  by      \ 
other  credible  witnesses,  or  by  circumstances  proved  in  the       1 
case.     Green  vs.  Taney,  4  C.  L.  11.,  52  e ;  Rudolph  vs.  Lane,       \ 
57   Ind.,   115;  Blerhach  vs.  Goodyear  Rah.  Co.,  54  Wis.,  208.    J 

§  4.  The  Jury  have  no  Right  to  Disreji:nrd  the  Testimony  of  any 
Witness  without  Cause. — You  are  instructed,  that  if  the  testi- 
mony of  \  witness  appears  to  be  fair,  is  not  unreasonable,  and 
is  consistent  with  itself,  and  the  witness  has  not  been  in  any 
manner  impeached,  then  you  have  no  right  to  disregard  the 
testimony  of  such  witness  from  mere  caprice  or  without 
cause.  It  is  the  duty  of  the  jury  to  consider  the  whole  of  the 
3 


3±  WEIGHT    OF    TESTIMONY. 

evidence,  and  to  render  a  verdict  in  accordance  with  the 
weiglit  of  all  the  evidence  in  the  case.  City  Baiik,  etc.,  vs. 
Kent,  57  Ga.,  2S3;  Smith  vs.  Grimes,  43  la.,  356;  RocJcford, 
R.  1.  (&  jSt.  L.  Rd.  Co.  vs.  Coultars,  67  111.,  398;  Oliver  vs. 
Fate,  43  Ind.,  132. 

While  it  is  the  duty  of  the  jury  to  carefully  scrutinize  and 
dispassionately  weigh  the  evidence  of  all  the  witnesses  in  the 
case,  still  it  is  your  sworn  duty  to  give  proper  credit  to  the 
evidence  of  each  and  all  of  the  witnesses,  and,  if  possible,  to 
reconcile  all  of  the  evidence  in  the  case  with  the  presumi)tion 
that  each  witness  has  intended  to  speak  the  truth,  unless  by 
their  manner  of  testifying  on  the  witness  stand,  or  by  incon- 
sistent statements  sworn  to,  or  by  testimony  inconsistent  with 
otiier  credible  evidence  in  the  case,  3'ou  are  led  to  believe 
that  the  testimony  of  some  one,  or  more,  of  the  witnesses  is 
untruthful  or  unreliable,  or  unless  youare  led  to  believe,  from 
a  manifestation  of  interest,  bias  or  prejudice,  that  such  wit- 
ness or  witnesses  have  been  inclined  to  exaggerate,  color  or 
suppress  the  truth,  or  unless  they  have  been  impeached  in 
some  of  the  modes  known  to  the  law,  as  explained  in  these 
instructions.  Chester  vs.  State,  1  Tex.  App.,  702;  Jones  vs. 
State,  48  Ga.,  163. 

§  5.     The    Credit  of  a  AVitness  Depends  upon  Two  Tilings :   His 

ability  to  know  what  occurred  and  his  disposition  for  telling 
the  truth  as  to  the  occurrence.  The  statement  of  a  witness 
having  superior  opportunities  for  knowing  what  took  place 
and  superior  intelligence  and  memory,  other  things  being 
equal,  is  entitled  to  the  greater  weight  before  the  jury. 

One  oi  the  tests  for  determining  the  credibility  of  a  witness 
is  his  interest  in  the  result  of  the  suit.  As  a  general  rule,  a 
witness  who  is  interested  in  the  result  of  a  suit  will  not  be  as 
honest,  candid  and  fair  in  his  testimony  as  one  who  is  not  so 
interested,  but  the  degree  of  credit  to  be  given  to  each  and 
all  of  the  witnesses  is  a  question  for  the  jury  alone.  Carver 
vs.  Louthain,  38  Ind.,  530.  ^ 

§  6.     Wlien  the  .Jury  May  Disregard  the  Testimony  of  a  Witness. 

— The  jury  are  instructed,  that  in  determining  the  questions 
of  fact  in  this  case,  they  should   consider  the  entire  evidence 


CREDIBILITY    OF    WITNESSES.  35 

introduced  by  the  respective  parties;  but  tlie  jury  are  at  lib- 
erty to  disregard  the  statement  of  all  such  witnesses,  if  any 
there  be,  as  have  been  successfully  impeached,  either  by 
direct  contradiction  or  by  proof  of  having  made  different 
statements  at  other  times,  or  by  proof  of  bad  reputation  for 
truth  and  veracity  in  the  neighborhoods  where  they  live — 
excejit  in  so  far  as  such  witnesses  have  been  corroborated  by 
other  credible  evidence,  or  by  facts  or  circumstances  proved 
on  the  trial.  Miller  vs.  The  People^  39  111.,  458;  Bowers  vs. 
The  People,  74  111.,  418;  0' Roxirle  vs.  O Rourhe,  43  Mich.,  48. 

§  7.     The  Jury  Should  Reconcile  the  Testimony,  if  Possible. — It 

is  the  duty  of  the  jury  in  passing  upon  the  credibility  of  the 
testimony  of  the  several  witnesses,  to  reconcile  all  the  differ- 
ent parts  of  the  testimony,  if  possible.  It  is  only  in  cases 
where  it  is  palpable  that  a  witness  has,  deliberately  and  inten- 
tionally, testified  falsely  as  to  some  material  matter,  and  is  not 
corroborated  by  other  evidence,  that  a  Jury  is  warranted  in 
disregarding  his  entire  testimony.  Although  a  witness  may 
be  mistaken  as  to  some  part  of  his  evidence,  it  does  not  follow, 
as  matter  of  law,  that  he  has  willfully  told  an  untruth,  or 
that  the  jury  would  have  the  right  to  reject  his  entire  testi- 
mony.    Gotlieb  vs.  Haihnayi,  3  Col.,  53. 

It  is  the  duty  of  the  jury  to  consider  carefully  all  the  testi- 
mony in  this  case  bearing  upon  the  issues  of  fact  submitted  to 
them,  and,  if  possible,  to  reconcile  any  and  all  apparently  con- 
flicting statements  of  the  witnesses,  and  if  you  find  it  practi- 
cable to  deduce  from  the  evidence  any  theory  of  the  case  which 
will  harmonize  the  testimony  of  all  the  witnesses,  it  will  be 
your  duty  to  adopt  that  theory,  rather  than  one  which  would 
require  them  to  reject  any  of  the  testimony  as  intentionally 
false.     Rudolph  vs.  Lane,  57  Ind.,  115. 

You  are  further  instructed,  that  if,  after  a  full  and  fair  con- 
sideration thereof,  you  are  unable  to  reconcile  the  statements 
of  all  the  witnesses  in  relation  to  the  matters  pertinent  to  the 
issues  submitted  to  you,  then  it  will  be  your  duty  to  consider 
on  which  side  is  the  preponderance  of  evidence,  and  to  find 
your  verdict  in  accordance  therewith.  Taylor  vs.  State,  5 
Tex.  App.,  1. 


36  "WEIGHT    OF   TESTIMONY. 

§  8.  A  Fact  is  Proved  if  Reasonably  Inferred. — The  jury  are 
iustnicted  that  in  detennining  what  facts  are  proved  in  this 
case  they  should  carefully  consider  all  the  evidence  given 
before  them,  with  all  the  circumstances  of  the  transaction  in 
question  as  detailed  by  the  witnesses,  and  they  may  find  any 
fact  to  be  proved  which  they  think  may  be  rightfully  and  rea- 
sonablv  inferred  from  the  evidence  given  in  the  case,  althous^h 
there  may  be  no  direct  testimony  as  to  such  fact.  Brims  vs. 
State,  ^^  Ind.,  428. 

§  9.  Willfully  Swearing  Falsely. — If  the  jury  believe,  from 
the  evidence,  that  the  witness  A.  B.  has  willfully  sworn  falsely 
on  this  trial  as  to  any  matter  or  thing  material  to  the  issues 
in  the  case,  then  the  jury  are  at  liberty  to  disregard  his  entire 
testimony,  except  in  so  far  as  it  has  been  corroborated  by 
other  credible  evidence,  or  by  facts  and  circumstances  proved 
on  the  trial.  Pierce  vs.  State,  53  Ga.,  365;  State  vs.  Kelltr- 
man,  15  Kans.,  133;  Mead  y^.  McGraio,  19  Ohio  St.,  55  (but 
see  Jo7ies  vs.  The  Peojyle,  2  Colo.,  359);  Iloge  vs.  Peo2)le,  117 
111.,  45. 

§  10.  Impeachment  of  Witnesses. — If  the  jury  believe,  from 
the  evidence,  that  the  witness  A.  B.  has  been  successfully  im- 
peached on  this  trial,  or  that  lie  has  willfully  sworn  falsely  as 
to  any  matter  or  thing  material  to  the  issues  in  this  case,  then 
the  jury  are  at  liberty  to  disregard  his  entire  testimony, 
except  in  so  far  as  it  has  been  corroborated  by  other  credible 
evidence,  or  by  facts  and  circumstances  proved  on  the  trial. 
Bowers  vs.  The  People,  74  111.,  418;  Gill  vs.  Crosby,  63  111., 
190;  Gotlieb  vs.  Ilartman,  3  Colo.,  60;  Mhiich  vs.  The  People, 
8  W.  C.  K,  588. 

§  11.  Bad  Repntation  for  Truth,  etc. — The  court  further 
instructs  the  jury,  that  if  they  believe  from  the  evidence  that 
the  witness  A.  B.  is  a  person  of  bad  reputation  for  truth  and 
veracity  in  the  neighborhood  were  he  resides,  then,  as  a  mat- 
ter of  law,  this  fact  tends  to  discredit  his  testimony,  and  the 
jury  may  entirely  disregard  it,  except  in  so  far  as  he  is  corrobo- 
rated by  other  credible  testimony,  or  by  facts  and  circum- 
btanccs  proved  on  the  trial. 


CREDIBILITY    OF    WITNESSES.  37 

The  court  instrnct?  you,  that  one  of  the  modes  recognized 
bv  law  for  impeaching  the  veracity  of  a  witness,  is  tlie  intro- 
duction of  ])ersons  us  witnesses  who  testify  that  they  are 
acquainted  with  tlie  general  reputation  for  truth  and  veracity 
of  the  person  sought  to  be  impeached,  in  tli(i  neighborhood  in 
which  he  resides;  and,  if  tlie  jury  believe,  from  the  evidence 
in  this  case,  that  the  general  reputation  of  the  witness  A.  B. 
for  truth  and  veracity  in  the  neighborhood  where  he  resides, 
is  bad,  then  the  jury  have  a  right  to  disregard  the  whole  of 
his  testimony,  and  to  treat  it  as  untrue,  exce])t  where  it  is  cor- 
roborated by  other  credible  evidence,  or  by  facts  and  circum- 
stances proved  on  the  trial.     1  Greenl.  on  Ev.,  §  461. 

"While  tlie  law  permits  the  impeachment  of  a  witness  by 
proving  his  general  reputation  for  truth  and  veracity  in  the 
neighborhood  where  he  resides  to  be  bad,  yet,  if  you  believe 
that  the  jilaintiff,  while  on  the  stand,  gave  a  truthful,  ciindid 
and  honest  statement  of  the  facts  and  circumstances  surround- 
ing the  transaction  in  question,  then  the  jury  should  not  dis- 
regard his  testimony,  but  you  should  give  it  such  faith  and 
credit  as  in  your  opinion  it  is  entitled  to."  Roy  vs.  Gomgs, 
112  111.,  6G6. 

§  12,  Different  Statements  Out  of  Court. — The  court  instructs 
the  jury,  that  one  of  the  modes  of  impeaching  a  witness,  is  by 
showing  that  he  has  made  statements  out  of  court  at  variance 
with  his  statements  on  the  witness-stand;  and  if  the  jury 
believe  from  the  evidence  that  the  witness  A.  B.  has  made 
statements  at  another  time  and  place  at  variance  with  his  evi- 
dence in  this  case,  regarding  any  material  matter  testified  to 
by  him,  then  it  is  the  province  of  the  jury  to  determine  to 
what  extent  this  fact  tends  to  impeach,  either  his  memory  or 
liis  credibility,  or  detracts  from  the  weight  which  ought  to 
be  given  to  his  testimony.  Craig  vs.  liohrer\  63  111.,  325; 
Glaze  vs.  Whitley,  5  Oreg.,  164;  1  Greenl.  on  Ev.,  §  462. 

The  credit  of  a  witness  may  be  impeached  by  proof  that  he 
has  made  statements  out  of  court  contrary  to  what  he  has  tes- 
tified on  the  trial,  and  if  you  believe  from  the  evidence  that 
the  witness  A.  B.  made  statements  out  of  court  on,  etc., — to 
etc., — contrary  to  what  he  has  sworn  upon  the  trial  upon  any 
material  matter,  then    these   contradictory  statements   would 


38  WEIGHT    OF   TESTIMONY. 

tend  to  impeach  the  witness,  and  you  would  be  justified  in 
rejecting  liis  testimony,  if,  from  all  the  other  evidence  in  the 
case,  you  believe  such  testimony  to  be  untrue. 

§  13.  Contradictory  Statements  Out  of  Court. — If  the  jury 
uelieve  from  the  evidence  that  the  witness  A.  B.,  before  tes- 
tifying in  this  case,  has  made  any  statements  out  of  court  con- 
cerning any  of  the  material  matters,  materially  different  and 
at  variance  with  what  he  has  stated  on  the  witness-stand,  then 
the  jury  are  instructed  by  the  court  that  these  facts  tend  to 
impeach  either  the  recollection,  or  the  truthfulness  of  the  wit- 
ness, and  the  jury  should  consider  these  facts  in  estimating  the 
weight  which  ought  to  be  given  to  his  testimony.  1  Greenl. 
Ev.,  §  462;  Glaze  vs.  Whitley,  5  Oreg.,  164. 

§  14.  Contradictory  Statements  Out  of  Court  Explained. — The 
court  instructs  the  jury,  that  if  they  believe  that  the  witness 
A.  B.,  out  of  court  and  not  under  oath,  stated  to  the  defend- 
ant and  others,  that  he  knew  nothing  about  the  matter,  etc. — 
and  that  the  defendant  had  told  him  nothing,  and  that  the 
witness,  when  under  oath,  stated  that  his  reason  for  so  saying 
was,  because  lie  feared  to  offend  the  defendant  and  others,  and 
also  stated  on  oath  that  the  defendant  did  tell  him,  etc. — then 
the  fact  of  the  witness  making  the  statement  out  of  court  at 
variance  with  what  he  stated  under  oath,  does  not  necessarily 
discredit  the  testimony  of  the  witness  under  oath;  the  jury 
should  judge  of  the  credit  of  the  witness  from  his  whole 
statement,  and  give  his  evidence  such  weight  as  they  believe 
it  entitled  to,  in  view  of  all  the  evidence  given  on  tlie  trial. 

§  15.  Preponderance  of  Evidence. — ^The  jury  are  instructed, 
that  the  preponderance  of  evidence  in  a  case  is  not  alone 
determined  by  the  number  of  witnesses  testifying  to  a  partic- 
ular fact,  or  state  of  facts.  In  determining  upon  which  side 
the  preponderance  of  the  evidence  is,  the  jury  should  take  into 
consideration  the  opportunities  of  the  several  witnesses  for 
seeing  or  knowing  tiie  things  about  which  they  testify;  their 
conduct  and  demeanor  while  testifying;  their  interest  or  lack 
of  interest,  if  any,  in  the  result  of  the  suit;  the  j)robability  or 
improbability  of  the  truth  of  their  several  statements,  in  view 


CKEDIUILITY    OF   WITNESSES.  Oy 

of  all  tlie  other  evidence,  facts  and  circumstances  proved  on 
the  trial;  and  from  all  tliese  circumstances  determine  upon 
which  side  is  the  weight  or  ])reponderance  of  the  evidence. 
Mayor  vs.  Mead,  83  111.,  19;  TF/w^a/i'^r  vs.P«^'7i'(?/',42  la.,  585; 
McRae  vs.  Laurence^  75  N.  C,  289;  Riley  v.  Butler,  3G  Ind., 
51. 

The  court  instructs  you,  as  a  matter  of  law,  that  where  two 
witnesses  testify  directly  opposite  to  each  other  on  a  material 
point,  and  are  the  only  ones  tliat  testify  directly  to  the  same 
point,  you  are  notbound  to  consider  the  evidence  evenly  balanced 
or  the  ]Mjint  not  proved;  you  may  re^^ard  all  the  surrounding 
facts  and  circumstances  proved  on  the  trial,  and  give  credence 
to  one  witness  over  the  other,  if  you  think  such  facts  and  cir- 
cumstances warrant  it.  Miller  vs.  Balthasser,  78  111.,  302; 
Durant  vs.  Rogers,  87  111.,  508;  Lawrence  vs.  Maxwell,  58 
Barb.,  511;  Delvee  vs.  Boardinan,  20  la.,  446;  Johnson  vs. 
Wddden,  32  Me.,  230. 

The  preponderance  of  evidence  does  not  consist  alone  in  the 
greater  number  of  witnesses  testifying  to  a  particular  fact  or 
state  of  facts.  The  apparent  consistency,  fairness  and  con- 
gruity  of  the  evidence,  and  the  reputation  of  the  witnesses  for 
truth  and  veracity,  where  this  is  shown  by  the  evidence,  are 
all  facts  to  be  considered  by  you  in  determining  the  preponder- 
ance of  the  evidence,  on  either  side.  Rudol-ph  vs.  Lane,  57 
Ind.,  115. 

You  are  instructed,  that  although  the  preponderance  of  the 
evidence  is  not  always  determined  by  the  number  of  witnesses 
testifying  in  a  case,  yet,  if  in  a  case  there  are  only  one  or  two 
witnesses  who  testify  to  a  given  state  offsets,  and  six  or  seven 
witnesses  of  equal  candor,  fairness,  intelligence  and  truthful- 
ness, and  equally  well  corroborated  bj'  all  the  other  evidence, 
and  who  have  no  greater  interest  in  the  result  of  the  suit,  testify 
against  such  state  of  facts,  then  the  preponderance  of  the  evi- 
dence is  determined  by  the  number  of  witnesses. 

You  are  instructed,  that  it  does  not  necessarily  follow  that 
a  plaintiff  has  failed  to  establish  his  case  (or  a  defendant  his 
defense)  by  a  preponderance  of  proof,  because  he  has  testified 
to  a  state  of  facts  which  are  denied  by  the  testimony  of  the 
defendant.  In  such  a  case,  in  arriving  at  the  truth,  you  have 
a  right  to  take  into  consideration  every  fact  and  circumstance 


40  WEIGHT   OF   TESTIMONY. 

proven  on  the  trial,  sncli  as  the  situation  of  the  parties;  their 
acts  at  the  time  of  the  transaction  and  afterwards,  so  far  as 
they  appear  in  evidence;  their  statements  to  third  parties 
in  relation  to  the  matters  in  question,  as  well  as  their  state- 
ments to  each  other  in  the  presence  of  third  parties,  if  any 
such  statements  have  heen  proved;  also  their  appearance  on 
the  witness  stand,  and  their  manner  of  testifying  in  the  case. 
Mathews  vs.  Story,  54  Ind.,  417;  Klassen  vs.  Reigei\  26  Minn., 
59;  Provmttain  vs.  Tindale,  80  Penn.  St.,  295;  tStamj)ofsTci 
vs.  Steffins,  79  111.,  303;  K.  P.  R.  Co.  vs.  Little,  19  Kans., 
267. 

When  a  witness  swears  that  a  certain  conversation  did  take 
place  (or  to  a  certain  state  of  facts),  and  an  other  equally  credi- 
hle  witness,  with  equal  opportunities  for  knowing,  testilies  that 
the  conversation  did  not  take  place  (or  to  a  contrary  state  of 
facts),  if  there  is  nothing  in  the  case  tending  to  corroborate 
one  witness  more  than  the  other,  then  in  law,  such  conversa- 
tion (or  alleged  state  of  facts)  cannot  be  regarded  as  proved 
by  a  preponderance  of  evidence.    State  vs.  Gates,  20  Mo.,  400. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  has 
sworn  ];ositively  that  the  defendant,  etc., — and  that  the  defend- 
ant has  sworn  just  as  positively  that  he  did  not,  etc., —  and  if 
you  further  find,  from  the  consideration  of  all  the  evidence 
in  the  c:ise,  that  the  testimony  of  defendant  is  entitled  to  as 
much  credit  as  that  of  the  plaintiff,  and  corroborated  to  the 
same  extent,»tlien,  so  far  as  that  point  is  concerned,  you  should 
find  for  the  defendant. 

You  are  instructed  that  a  man's  reputation  for  truth  and 
veracity  is  made  by  what  his  neighbors  and  persons  well 
acquainted  with  him  generally  say  of  him  in  that  regard;  and 
if  they  generally  say  he  is  untruthful,  that  makes  his  reputa- 
tion for  truth  and  veracity  bad.    Davis  vs.  Foster,  68  Ind.,  238. 

You  are  further  instructed,  that  if  a  man's  neighbors  and 
persons  who  are  well  acquainted  with  him,  generally  say  that 
they  have  never  lieard  an3'thing  said  about  him  as  to  his  truth- 
fulness, that  is  evidence  tending  to  show  that  his  general  repu- 
tation for  truth  and  veracity  among  liis  neighbors  and  acquaint- 
ances is  good.  JJacls  vs.  Foster^  OS  Ind,,  238;  1  Taylor's  Law 
of  Evi.,  §  325. 


CKEDIIJILITY    OF   WITNESSES.  41 

^   IG.      Jiiiy  Need   not  Disrc;>:ar(l  Testimony  of  Impeached  AVit- 

ness. — Xotu'itlistanding  witnesses  may  be  discredited  by  im- 
peaching evidence,  their  testimony  ought  not  to  be  wholly 
disregarded  if  it  is  sustained  by  the  corroborating  evidence  of 
circumstances,  or  of  other  credible  witnesses.  Smith  et  al.  vs. 
Orimes  et  al.^  43  la.,  356. 

The  court  instructs  you,  that  while  the  law  permits  the  im. 
peachment  of  a  witness,  by  proving  his  general  reputation  for 
truth  and  veracity,  in  the  neighborhood  where  he  resides,  to  be 
bad,  still  the  degree  of  credence  to  which  such  a  witness  is 
entitled,  and  the  weight  to  be  attached  to  his  testimony,  are 
matters  to  be  determined  by  you  and  by  you  alone,  in  view  of 
all  the  evidence  and  of  all  the  facts  and  circumstances  proved 
on  the  irial. 

And  m  this  case,  if  you  believe  from  the  evidence  that  the 
witness  A.  B.,  while  u]ion  the  witness-stand,  gave  a  fair,  candid 
and  honest  statement  of  the  facts  and  circumstances  sur- 
rounding the  transaction  in  question,  then  you  should  not  dis- 
regard his  testimony,  but  you  should  give  it  such  faith  and 
credit  as,  in  your  opinion,  it  is  entitled  to. 

The  testimony  of  a  witness  who  has  been  impeached  ought 
not  to  be  wholly  disregarded  by  you  if  you  feel  justified, 
from  his  deportment  upon  the  stand,  or  the  probability  of  his 
testimony,  in  believing  it,  even  if  it  receives  no  other  corrobo- 
ration. Green  vs.  Cochran^  43  la.,  544;  Addison  vs.  The  State, 
48  Ala.,  478;  City  Biz.  vs.  Kent,  57  Ga.,  258. 

§  17.  Negative  Evidence,  What  is  Not. — The  court  instructs 
the  jury,  that  when  one  or  more  witnesses  testify  to  being 
present  upon  any  occasion,  and  that  certain  facts  then  took 
])lace  (or  that  certain  words  were  then  spoken)  and  other 
witnesses  of  equal  credibility,  having  equal  means  of  knowing 
what  took  place  (or  what  was  said),  testify  that  they  were 
present  on  the  same  occasion,  and  that  sucli  fact  did  not  take 
place  (or  that  the  alleged  v/ords  were  not  spoken),  then  the 
testimony  of  the  latter  witnesses  is  not  what  is  known  as 
negative  testimony,  but  it  is  entitled  to  be  regarded  by  the 
jury  as  affirmative  testimony  ;  and  in  such  a  case  it  is  the  duty 
of  the  jury  to  weigh  all  the  testimony  and  give  a  verdict  as 
the    weight   may    preponderate    to   the    one   side  or  other. 


42  WEIGHT   OF   TESTIMONY. 

Soh2y  vs.  Thomas,  39   Wis.,  317 ;  FHzell  vs.  Cole,   42  111., 
362  ;  Sutherland  vs.  N'.  T.,  etc.,  Rd.  Co.,  41  N.  Y.,  17. 

You  are  instructed,  as  a  matter  of  law,  that  if  other  tilings 
are  equal,  affirmative  testimony  is  in  general  entitled  to  more 
weight  than  negative  testimony.  If  you  helieve  from  the 
evidence  that  witness  A.  B.  is  a  credible  witness  and  you  find 
that  he  has  sworn  that  he  was  present  upon  the  occasion  in 
question  and  saw  the  defendant  (pick  up  a  ten-dollar  bill  and 
hand  it  to  P.)  then  this  is  what  is  known  as  affirmative  testi- 
mony, and  is  for  that  reason  entitled  to  more  weight  than 
negative  testimony,  and  if  you  further  believe  from  the 
evidence  that  the  witness  C.  D.  is  a  credible  witness  and  you 
find  that  he  has  sworn  that  he  also  was  present  at  the  time  in 
question,  and  did  not  see  the  defendant  (pick  up  any  bill,  etc.), 
then  his  evidence  upon  this  point  is  what  is  known  as  negative 
evidence,  and  for  that  reason  is  entitled  to  less  weight  than 
the  testimony  of  the  witness  A.  B.  upon  the  same  point, 
provided  you  further  believe  from  the  evidence  that  the  two 
witnesses  are  otherwise  entitled  to  equal  credit  and  that  both 
have  been  corroborated  to  the  same  extent.  Pool  vs.  Devers, 
30  Ala.,  672  ;  Johnson  vs.  State,  14  Ga.,  55. 

§  18.  Proof  as  to  Dates,  Testimony  as  to,  Corroborated. — The 
jury  are  instructed,  that  whether  little  or  much  reliance  should 
be  placed  upon  the  unaided  memory  of  witnesses  as  to  dates, 
and  whether  greater  weight  should  be  attached  to  testimony 
in  regard  to  dates  accompanied  by  written  memorandum  of 
facts,  containing  the  date  in  question,  are  questions  exclusively 
for  the  jury,  and  if  the  jury  believe  from  the  evidence  that 
greater  weight  should  be  attached  to  the  latter  class  of  testi- 
mony, then  the  jury  should  give  credit  accordingly. 

§  19.  Burden  of  Proof. — The  jury  are  further  instructed, 
tliat  the  burden  of  proof  in  this  class  of  cases  is  always  upon 
the  party  holding  the  affirmative;  and  any  matter  asserted  by 
one  party  and  denied  by  the  other,  can  only  be  proved  in  law 
by  a  ])re])onderance  of  the  evidence;  and  in  this  case,  if  the 
jury  lind  from  the  evidence  that  the  plaintiff  has  proved  the 
alleged  contracts  by  only  one  witness,  and  that  the  contract 
has  been  denied  by  one  witness  of  equal  credibility  and  means 


CrwEDICILITY    OF    WITNESSES.  43 

of  knowledge,  then  as  a  matter  of  law  such  contract  Las  not 
been  proved,  unless  in  the  minds  of  the  jury  there  have  been 
facts  or  circumstances  proved  corroborating  the  plaintiff's  wit- 
ness sufficient  to  outweigh  the  testimony  on  the  part  of  the 
defendant. 

The  court  instructs  you,  as  a  matter  of  law,  that  the  burden 
of  ]iroof  is  ujjon  the  ])laintiif,  and  it  is  for  him  to  prove  his 
case  by  a  preponderance  of  the  evidence.  If  you  iind  that 
the  evidence  bearing  ui)on  the  plaintiff's  case  is  evenly  bal- 
anced, or  that  it  preponderates  in  favor  of  the  defendant,  then 
the  plaintiff  cannot  recover,  and  you  should  find  for  the  de- 
fendant. 

§  20.  Parties. — The  jury  are  instructed,  that  while  our 
statute  renders  parties  to  a  suit  competent  witnesses,  and 
allows  them  to  testify,  stiil  the  jury  ai^e  the  judges  of  the 
credibility  and  weight  of  such  testimony;  and  in  determining 
such  weight  and  credibility,  the  fact  that  such  witnesses  are 
interested  in  the  result  of  the  suit,  if  it  so  appears  from  the 
evidence,  may  be  taken  into  account  by  the  jury,  and  they 
may  give  such  testimony  only  such  weight  as  they  think  it 
fairly  entitled  to  under  all  the  circumstances  of  the  case,  and 
in  view  of  the  interest  of  such  witnesses.  Hill  vs.  ISprviikle^ 
76  K  C,  355. 

§  21.     Testimony  of  the  Parties  to  be  Weighed  by  Jury. — The 

com-t  instructs  the  jury,  that  while  the  law  makes  the  defend- 
ant (or  plaintiff)  a  competent  witness  in  this  case,  yet  the  jury 
have  a  right  to  take  into  consideration  his  situation  and  inter- 
est in  the  result  of  your  verdict,  and  all  the  circumstances 
which  surround  him,  and  give  to  his  testimony  only  such 
weight  as  in  your  judgment  it  is  fairly  entitled  to.  NeUon 
vs.   Yorce^  58  Ind.,  455. 

§  22.  Party  Failing  to  Testify. — The  court  instructs  the  jury, 
as  a  matter  of  law,  that  while  the  statute  of  this  State  author- 
izes a  party  to  a  suit  to  go  upon  the  stand  and  testify  in  his 
own  favor,  he  is  under  no  obligation  to  do  so;  and  if  he  fails 
to  do  so,  the  jury  have  no  right  to  infer  from  this  fact  alone 
anything  prejudicial  to  such  party,  and  no  intendment  should 


ii  -WEIGHT   OF   TESTI:«0^■T. 

1)3  made  aojainst  him  because  he  does  not  testify'  in  his  own 
favor.     Lowe  vs.  Massey,  62  111.,  47. 

The  defendant  had  a  right  to  offer  himself  as  a  witness  in 
his  own  behalf  on  this  trial;  that  he  has  not  done  so  was  at 
his  own  option  ;  and  this  omission  on  his  part  to  testify  in  his 
own  favor  is  a  proper  subject  for  your  consideration,  and  you 
have  a  riglit  to  determine  in  view  of  all  the  facts  and  circum- 
stances proved  on  the  trial  what  inference  you  will  draw  fi'om 
such  omission  to  testify.    Whitney  vs.  Bayley,  4  Allen,  73. 

The  law  is  that  when  a  witness  testifies  to  certain  alleged 
facts  within  the  knowledge  of  a  party  to  the  suit,  and  which 
tend  to  his  prejudice,  and  he  does  not  offer  himself  for  a  wit- 
ness, and  no  reason  is  given  why  he  is  not  called,  then  the 
jury  may  take  his  failure  to  testify  into  consideration  in  deter- 
mining what  credit  ought  to  be  given  to  the  witness  who  has 
testitied  to  such  alleged  facts.  Perkins  vs.  Hitchcock^  49  Me., 
468;  Fidleru  vs.  Glidden^  68  Me.,  559. 

§  23.  Corporations — AVitnesses  for,  How  Regarded. — The  jury 
are  instructed  that  they  liave  no  right  to  disregard  the  testi- 
mony of  defendant's  witnesses  through  caprice,  or  without 
cause,  merely  for  the  reason  that  they  are  in  the  employ  of  a 
corporation  (or  a  railroad  company).  The  credibility  of  the 
defendant's  watnesses  should  be  judged  of,  by  the  jury,  pre- 
cisely the  same  as  they  judge  of  the  credibility  of  other  wit- 
nesses. 

§  24.     Suits  against,  to  be  Tried  the  Same  as  Others. — It  is  the 

imperative  duty  of  the  jury  to  try  this  cause  and  to  decide  it 
pj-ecisel}^  the  same  as  they  would  if  it  was  a  suit  between  two 
individuals;  and  the  fact  that  the  plaintiff  is  an  individual  and 
the  defendant  a  corporation,  should  make  no  difference  with 
the  jury.  In  considering  and  deciding  the  case,  the  jury 
should  look  solely  to  the  evidence  for  the  facts,  and  to  the 
instructions  of  the  court  for  the  law  of  the  case,  and  lind  their 
verdict  accordingly  without  any  reference  to  who  is  plaintiff 
or  who  is  defendant. 

§  25.  Verbal  Admissions,  How  Weighed. — The  court  instructs 
the  jury,  that  although  parol  proof  of  the  verbal  admissions  of  a 


CEEDIBILITY    OF     WITNESSES.  45 

pajty  to  a  suit,  when  it  ap]:)cars  tliat  the  admissions  were  nnder- 
standingly  and  deliberately  made,  often  afford  satisfactory 
evidence.  Yet,  as  a  general  rule,  the  statements  of  a  witness 
as  to  the  verbal  admissions  of  a  party  should  be  receivod  by  the 
jury  with  great  caution,  as  that  kind  of  evidence  is  subject  to 
nmch  imperfection  and  mistake.  The  party  himself  may  have 
been  misinformed,  or  may  not  have  clearly  expressed  his 
meaning,  or  the  witness  may  have  misunderstood  him;  and  it 
frequently  hapjoens  that  the  witness,  by  unintentionally  alter- 
ing a  few  of  the  expressions  really  used,  gives  an  eifcct  to  the 
statement  completely  at  variance  with  what  the  party  did  act- 
na]\y  say.  But  it  is  the  province  of  the  jury  to  weigh  such 
evidence  and  give  it  the  consideration  to  whicli  it  is  entitled, 
in  view  of  all  the  other  evidence  in  the  case.  Martin  vs.  Tlie 
Toion,  etc.,  40  la.,  390;  Saveland  vs.  Green,  40  "Wis.,  431; 
Mauro  v.  Piatt,  G2  111.,  450. 

You  are  further  instructed,  as  a  matter  of  law,  that  parol 
evidence  of  the  verbal  admissions  of  a  party  to  a  suit,  may  be 
evidence  of  the  most  satisfactory  character,  or  it  may  be 
regarded  as  belonging  to  the  very  M'cakest  class  of  testimony, 
depending  npon  the  surrounding  circumstances. 

If  you  can  see,  from  the  evidence,  that  the  alleged  admis- 
sions were  clearly  and  understandingly  made  by  the  party,  and 
that  they  are  precisely  identified,  and  the  language  correctly 
remembered  and  accurately  repeated  by  the  witness,  then  such 
testimony  is  entitled  to  great  weight. 

But  if  it  appears  to  the  jury,  from  the  circumstances  proved, 
that  the  party  himself  may  have  been  nn'sinformed,  or  may 
not  have  expressed  his  own  meaning  clearly  and  understand- 
ingly, or  that  the  witness  may  have  misunderstood  him,  or 
that  the  witness  had  no  reason  or  motive  for  remembering  the 
exact  language  used,  or  wdiere,  from  lapse  of  time  or  for  any 
other  reason,  the  jury  can  see  that  the  witness  is  liable  to  be 
mistaken,  or  unable  to  give  the  exact  words  really  used  by  the 
party,  or  their  exact  equivalents,  then  but  little  reliance  should 
be  placed  upon  this  class  of  testimony.  Ilall  vs.  Lcyton,  IG 
Tex.,  262. 

§  2G.  Admissions,  All  to  be  Considered  Together — The  Jury 
may  Believe  Part  and  Reject  Part. — The  jury  are  instructed,  that 


iG  WEIGHT    OF    TESTIMONY. 

the  rule  of  lau',  that  the  wliole  of  a  declaration  or  an  alleged 
confession  must  all  be  taken  together  by  the  jury  and  con- 
sidered by  them,  does  not  mean  that  the  jury  must  believe  it 
all,  if  they  accept  any  part  of  it  as  true.  The  jury  may  believe 
such  parts  of  the  alleged  declaration  or  statement,  as  in  view 
of  all  the  facts  and  circumstances  proved,  they  believe  are  true 
or  credible,  and  reject  such  portions,  if  any,  as  they  believe  to 
be  untrue  or  unreliable. 

That  while  the  jury  are  not  required  to  give  equal  credence 
to  every  part  of  the  statements  or  admissions  of  the  defendant, 
if  they  believe,  from  the  evidence,  that  any  such  statements 
or  admissions  have  been  proved,  yet  the  whole  of  such  state- 
ments sliould  be  carefully  weighed  and  considered  by  the 
jury  in  the  light  of  all  the  surrounding  circumstances  appear- 
ing in  evidence — the  motives  which  may  have  induced  it — its 
consistency  with  tlie  other  evidence ;  and  the  jury,  without 
capriciously  or  causelessly  accepting  or  rejecting  any  portion^ 
should  credit  such  parts  as  they  find  reason  for  believing,  and 
reject  that  part  which  they  find  reason  for  disbelieving,  in  view 
of  all  the  facts  and  circumstances  proved  on  the  trial.  Ellaiid 
vs.  The  State^  52  Ala.,  322  ;  State  vs.  Ilollenscheit^  61  Mo., 
302 ;  Eiley  vs.  State,  4  Tex.  App.,  53S;  1  Grecnlf.  Ev.,  §  201, 
202;  Best  on  Ev.,  §  520. 

§  27.     Admissions  to  be  Taken  All  Together — How  to  be  Weighed. 

— The  admissions  of  a  party,  when  ])roved,  are  evidence 
against  him,  and,  altliough  such  admissions  are  to  be  taken 
together  as  a  whole,  the  jui'y  arenot  bound  to  regard  all  parts 
of  them  with  equal  confidence.  The  fact  that  they  are  against 
his  interest,  or  in  favor  of  it,  their  improbability,  inconsist- 
ency, contradiction  or  corroboration,  by  other  facts  in  proof, 
are  circumstances  proper  to  be  considered  by  the  jury  in 
determining  the  weight  to  be  given  to  such  admissions  or  to 
the  several  parts  thereof.    Riley  vs.  State^  4  Tex.  App.,  538. 

§  28.  WHien  Pai-ty  not  Estopped  by. — The  jury  are  instructed 
that  the  admissions  of  a  party  to  a  civil  suit,  knowing  his 
rights,  if  clearly  proved,  are  strong  evidence  against  him;  but 
he  is  at  liberty  to  prove  that  such  admissions  were  mistakenly 
made,  or  were  untrue;  unless   some   other   person  has  been 


CKEDIBILITT    OF    WITNESSES.  47 

induced  by  tlicm  to  alter  his  condition;  in  wliicli  ease,  as  to 
such  persons,  or  those  claiming  under  them,  he  is  estopped 
from  disputing  tlie  truth  of  his  admissions;  but  he  is  not 
estopped  as  to  other  persons  who  have  not  acted  upon  the 
faith  of  such  admissions.     Hay  vs.  Bell^  24  111..  444. 

The  court  furtlier  instructs  you,  that  while  the  admissions 
of  a  party  are  competent  evidence  to  go  to  the  jury,  the  party 
against  whom  they  are  shown  is  always  allowed  to  disprove 
them,  if  they  are  not  true.  He  may  show  that  they  are  not 
true,  but  were  made  for  a  purpose  or  in  ignorance  of  the  facts, 
and  if  he  shows  that  they  were  not  true,  iie  will  not  be  bound 
by  them — unless  it  appears  from  the  evidence  that  the  oppo- 
site party,  or  those  under  whom  he  claims,  have  acted  upon 
such  admissions  and  altered  his  or  their  condition  on  the  faith 
of  such  admissions.     1  Greenlf.  Ev,,  §  204. 

§  29.  Offer  to  Compromise,  Party  not  Bound  by. — The  jury  are 
mstructed,  that  parties  have  a  right  to  get  together  and  buy 
their  ]3eace,  by  making  concessions  to  each  other;  and  any 
offer  or  proposition  of  settlement,  if  made  for  that  purpose 
merely,  will  not  be  binding  upon  the  party  as  an  admission  of 
the  amount  due  or  claimed  at  the  time.  Barker  vs.  Bushnell, 
75  111.,  220;  Paijne  vs.  Ed.  (7o.,  40  K  Y.  S.  Ct.,  8  Plummer 
vs.  Carrier,  52  N.  H.,  2S7 ;  Ga>j  vs.  Bates,  99  Mass.,  263. 

§  30.  Admissions  in  Affidavit  for  Continuance. — The  court  in- 
structs the  jury,  that  the  plaintiff,  by  admitting  the  statements 
contained  in  the  affidavit  for  a  continuance,  which  were  read 
in  evidence  before  you,  simply  admits  that  if  the  said  witness 
A.  B.  were  present  here  as  a  witness  testifying  in  this  case, 
he  would  testify  as  stated  in  the  affidavit;  but  the  plaintiff' 
does  not  admit  that  such  testimony  would  be  the  truth ;  he  has 
the  same  right  to  contradict  such  admitted  testimony  as  though 
the  witness  were  present  and  had  testified  to  the  same  matter 
on  the  witness-stand.  And  if  the  jury  believe,  from  all  the 
evidence  in  the  case,  tliat  the  said  witness  was  not  present  on 
the  occasion  testified  to  by  the  other  witnesses,  or  did  not  hear 
what  was  said,  or  did  not  know  what  took  place,  at  the  time 
referred  to,  or  is  mistaken  in  his  statement  of  the  facts,  or  that, 
for  any  other   reason  appearing  in  evidence,  such  admitted 


4S  WEIGHT   OF   TESTIMONY. 

testimony  is  not  reliable,  then  the  jury  have  a  ri^lit  to  so  re- 
gard it,  and  give  their  verdict  as  seems  to  he  warranted  from 
all  the  evidence  in  the  case.  U.  S.  L.  Ins,  Co.  vs.  Wrhjkt, 
33  Ohio  St.,  533. 

The  court  further  instructs  you  that  you  are  to  give  full 
faith  and  credit  to  the  matters  of  fact  stated  in  the  affidavit 
for  a  continuance,  and  read  to  the  jury  as  matters  M'hich  the 
defendant  expected  to  prove  by  the  absent  witness  A.  B.,  pre- 
cisely to  the  same  extent  as  if  the  said  A.  B.  had  been  hero 
personally  present  and  examined  as  a  witness,  and  had  sworn 
to  the  truth  of  those  matters  on  the  witness-stand. 

You  are  further  instructed  that  you  are  to  give  full  credit 
to  the  matters  of  fact  stated  in  defendant's  affidavit  for  a  con- 
tinuance, as  to  what  he  expects  to  prove  by  ilie  said  absent 
witness  A.  B.,  precisely  to  the  same  extent  as  if  the  witness 
had  been  present  and  examined  in  this  case,  and  had  sworn 
precisely  as  set  forth  in  the  affidavit,  as  read  to  the  jury. 

And  you  should  give  such  statements  in  the  affidavit,  as  to 
what  defendant  expects  to  prove  by  said  witness,  all  the 
weight  to  which  they  would  be  entitled  if  such  statements  had 
been  sworn  to  by  the  witness,  on  the  witness-stand,  in  the  pres- 
ence of  the  jury. 

That  the  admissions  made  in  this  case,  relating  to  what  de- 
fendant expects  to  prove  by  the  absent  witness  A.  B.,  are  to 
be  considered  by  yon  the  same  as  if  the  same  witness  had  been 
examined  as  a  witness  in  the  case,  and  had  testified  on  oath, 
before  you,  that  he  was  present  upon  the  occasion  referred  to 
by  the  other  witnesses,  during  the  whole  of  the  interview,  etc., 
etc.:  and  if  such  testimony  has  not  been  contradicted,  or  dis- 
proved by  other  evidence  in  the  case,  or  by  circumstances 
proved  on  the  trial,  then  you  must  take  such  statement  of  fact 
as  true. 

§  31.  Party  not  Bound  by  Statfrnr^nt^  of  His  Own  Witnesses. — 
The  court  instructs  the  jury,  that  wIilju  a  ]>arty  otfers  a  wit- 
ness and  places  him  on  the  witness-stand  he  thereby  represents 
him  in  general  to  be  worthy  of  belief;  but  such  party  is  not 
thereby  precluded  from  proving  the  truth  of  any  particular 
fact  by  any  other  competent  testimony,  in  direct  contradic- 
tion to  what  such  witness  may  have  testified  to;  and  tJiis  is 


CREDIBILITY    OF    WITNESSES.  49 

true  not  only  when  it  appears  tliat  the  witness  was  mistaken, 
but  also  when  tlie  evidence  may  collaterally  have  the  eli'ect  of 
showing  that  he  was  generally  unworthy  of  belief.  Skipper 
vs.  Georgia,  59  Ga.,  63;  Warren  vs.  Gabriel,  5i  Ala.,  235; 
Gibhs  vs.  Ilayler,  41  N.  T.,  191;  Blaclcbum  vs.  Com..^  12  Bush 
Ky.,  ISl;  Becker  vs.  Koch,  ION.  E.  Eep.,  701. 

§  32.     Verdict  to   be   Detenninccl  by  the  Evidence   Alone. — In 

determining  any  of  the  questions  of  fact  presented  in  this  case 
the  jury  should  be  governed  solely  by  the  evidence  introduced 
before  them.  The  jury  have  no  right  to  indulge  in  specula- 
tions or  conjectures  not  supported  by  the  evidence. 

§  33.  Statements  of  Counsel. — The  jury  are  instructed  that 
it  is  not  proper  for  counsel,  in  the  argument  of  a  ease,  to  state 
any  matter  or  things  bearing  upon  the  questions  of  fact,  and 
claimed  to  be  within  his  own  personal  knowledge,  or  which 
may  have  been  stated  to  him  by  others,  not  witnesses  in  the 
case. 

And  you  are  further  instructed  to  disregard  all  such  state- 
ments, if  any  have  been  made,  and  to  make  up  your  verdict 
upon  the  evidence  actually  given  in  this  case,  without  placing 
any  reliance  upon,  or  giving  any  credit  to,  any  statements  of 
counsel  not  supported  by  the  evidence. 

In  determining  any  of  the  questions  of  fact  presented  in 
this  case  you  should  be  governed  solely  by  the  evidence  intro- 
duced before  you. 

The  court  instructs  you,  that  an  attorney  is  a  competent 
witness  for  his  client  on  the  trial  of  a  cause;  and  the  testimony 
of  such  a  witness  should  not  be  disregarded  by  you^  simply 
because  he  is  an  attorney  testifying  in  favor  of  his  own  client. 
In  such  a  case,  you  are  the  judges  of  the  weight  and  credit 
to  which  such  testimony  is  entitled.  You  may  consider 
whether  the  statements  of  the  witness  are  apparently  fair  and 
candid,  or  otherwise;  whether  they  are  consistent  with  them- 
selves, and  to  what  extent,  if  any,  they  are  corroborated  or 
contradicted  by  other  evidence  in  the  case,  and  give  to  the 
testimony  such  faith  and  credit  as  you  believe  it  entitled  to, 
in  view  of  all  the  facts  and  circumstances  appearing  on  the 
trial. 

4 


50  M'EIGHT    OF    TESTIMONY. 

You  arc  instriscted,  that  while  the  law  allows  an  attorney 
on  the  trial  of  a  cause  to  testify  as  a  witness  in  favor  of  his 
own  client,  still,  the  weight  and  credit  which  should  be  given 
to  such  testimony  are  questions  exclusively  for  you;  and  if, 
from  all  the  facts  and  circumstances  appearing  on  the  trial, 
you  are  satisfied  that  the  attorney,  A.  B.,  from  feeling  or 
prejudice,  or  from  devotion  to  the  interests  of  his  client,  or 
for  any  other  reason,  lias  exaggerated  or  suppressed  the  truth, 
or  in  any  manner  colored  his  testimony,  as  to  any  material 
matter,  then  you  have  a  right  to  take  such  fact  into  considera- 
tion, together  with  all  the  other  evidence  in  the  case,  in 
determining  what  degree  of  weight  or  credit  ought  to  be 
given  to  his  testimony. 

Note. — It  is  of  d  .ubtful  professional  proprietj^  f or  an  attorney  to  become 
a  witness  for  his  client  on  the  trial  of  a  cause,  without  first  entirely  with- 
drawing from  any  further  connection  with  the  case  as  attorney;  and  an 
attorney  occupying  the  attitude  of  both  witness  and  attorney  for  his  client 
subjects  his  testimony  to  criticism,  if  not  suspicion.  Ross  et  al.  v.  Demos, 
45  III.,  447;  Best  on  Ev.,  §  184;  1  Greenlf.  on  Ev.,  §  36t,  386. 

§  34:.  Witness  Excused  from  Answering. — In  this  case  the 
witness  A.  B.  was  asked  whether,  etc.,  and  declining  to  answer 
the  question  on  the  ground  that  the  answer  might  criminate 
himself,  he  was  excused  from  answering.  From  this  failure 
to  answer,  the  jury  must  not  infer  that,  etc., — the  jury  are  not 
at  liberty  to  suppose,  infer  or  imagine  what  would  have  been 
his  answer,  if  one  had  been  given.  The  case,  so  far  as  that 
question  to  that  witness  is  concerned,  stands  as  if  the  question 
had  not  been  put.  The  jury  must  act  upon  the  evidence  in 
the  case  and  not  upon  what  they  may  imagine  the  evidence 
might  have  be^n.     People  vb.  Brewer^  27  Mich.,  134. 


CHAPTER  III. 
ACCOUNT  STATED. 


Sec.     1 .  Need  not  be  stated  in  express  terms. 

2.  Must  be  agreed  to. 

3.  Settlement  presumed  to  include  all  items. 

4.  Can  only  be  opened  for  fraud  or  mistake. 

5.  Account  rendered  not  objected  to,  admitted. 

6.  May  be  opened  for  fraud  or  mistake. 

7.  Contradicting'  receipt. 

8.  Receipt,  2J>'i»in  facie  correct. 

9.  Settlement  and  receipt  obtained  by  duress. 

§  1.  Need  not  be  Stated  in  Express  Terms. — The  jury  are 
instructed,  that  in  order  to  constitute  an  account  stated,  it  is 
not  necessary  that  the  admission  of  the  parties,  that  tlie  bal- 
ance struck  is  correct,  should  be  made  in  express  terms.  If  a 
creditor  his  rendered  his  account  to  the  debtor,  exhibiting  tlie 
items  thereof,  and  the  amount  due  thereby,  and  the  account 
is  not  objected  to  by  the  debtor  within  a  reasonable  time,  the 
acquiescence  of  the  debtor  therein  is  to  be  taken  as  an  admis- 
sion that  the  account  was  truly  stated.  Poioell  vs.  P.  R.  R.^ 
65  Mo.,  658;  1  Greenleaf  Ev.,  Sec.  197;  Freeland  vs.  Heron^ 
7  Cranch,  147;  ITat/es  vs.  Kelley,  116  Mass.,  300. 

§  2.  Must  be  Agreed  to. — In  order  to  constitute  an  account 
stated  it  must  appear  from  the  evidence  that  the  parties  either 
expressly  or  impliedly  agreed  upon  a  balance  due.  And 
although  you  may  believe  from  the  evidence  that  at  the  time 
in  question  the  parties  got  together  and  looked  over  their 
accounts  and  struck  a  balance  this  would  not  be  binding  U[)on 
the  parties  as  an  account  stated  unless  you  further  believe  from 
the  evidence  that  both  the  parties  then  agreed  or  understood, 
that  such  balance  should  be  regarded  as  the  amount  due  from 
the  defendant  to  the  ])laintilf.  Reinhardt  vs.  Rines^  51  Miss. 
344;  Cajpe  G.  Rd.  Co.  vs.  Kimmel,  68  Mo.,  83;  •  Stenton  vs. 
Jerome,  54  N.  Y.,  408. 

(51) 


52  ACCOUNT    STATED. 

Altliongli  yoiT  may  bolicve  from  the  evidence  tliat  some 
time  about,  etc.,  tliL'  ])laintiff  made  out  a  statement  of  account 
including  items  on  botli  sides  of  the  account,  and  struck 
what  he  called  a  balance  and  showed  the  same  to  the  defend- 
ant and  I'cquested  liim  to  make  payment  thereon — and  further, 
that  the  defendant  made  no  objection  to  the  statement  of 
account  at  that  time,  this  alone  would  not  be  sufficient  to 
constitute  an  account  stated,  jjrovided  that  you  further 
believe  from  the  evidence  that  the  plaintiff  did  not  leave  the 
statement  with  the  defendant  and  that  no  balance  was  in  fact 
agreed  upon  by  the  parties  or  assented  to  by  the  defendant 
as  the  amount  due  from  one  party  to  the  other.  Payne 
vs.  ^Yal'ker,  26  Mich.  60. 

§  3.  Settlement  Presumed  to  Include  all  Items. —  If  you  be- 
lieve, from  the  evidence,  that  some  time  about,  etc.,  the 
plaintiff  and  defendant  met  together,  and  looked  over  their 
accounts  for  the  purpose  of  settling  tlie  same,  and  that  they 
then  settled  and  agreed  upon  a  balance  due,  then  the  law  will 
presume  that  such  settlement  embraced  all  the  items  that  each 
Jiad  against  the  other  that  were  then  due;  and  in  such  case  it 
devolves  upon  tiie  party  asserting  the  contrary  to  prove,  by  a 
preponderance  of  evidence,  that  the  item,  etc.,  was  omitted  by 
consent  of  the  parties,  or  by  accident  and  unintentionally,  or 
by  the  fraud  of  the  other  party.  Strauhher  y&.  Mohlei\  SO 
III,  21;  Allrecht  vs.  Gies,  33  Mich.,  289. 

§  4.  Can  Only  be  Opened  for  Fraud  or  Mistake. — If  you  be- 
lieve, from  the  evidence,  that  some  time  on  or  about,  etc.,  the 
parties  to  this  suit  met  and  looked  over  their  accounts  to- 
gether, and  settled  all  matters  between  them,  and  struck  a 
balance  and  agreed  upon  that  as  the  amount  due  from  one  to 
the  other,  then,  in  the  absence  of  mistake  or  fraud,  neither 
party  will  be  allowed  to  go  behind  that  settlement  for  the  pur- 
])Ose  of  increasing  or  diminishing  the  amount  so  agreed  upon. 
1  Am.  &  Eng.  Ency.,  125. 

You  are  instructed,  that  when  two  parties  have  a  settlement 
and  adjust  all  their  accounts,  and  agree  upon  the  balance  due, 
neither  party  can  afterwards  open  the  settlement  without  first 
showing  that  there  was  some  fraud  practiced  on  him,  or  amis- 


ACCOUNT    STATED.  53 

take  made  by  both  parties;  and  the  burden  of  proof  is  upon 
the  party  wishing  to  open  the  settlement,  to  show,  by  a  pre- 
ponderance of  evidence,  that  there  was  a  fraud  practiced 
upon  him,  or  that  the  parties  were  laboring  under  a  mistake 
in  relation  to  some  matter  of  fact  which  entered  into,  or 
affected  the  settlement.  Qiihilan  vs.  Keiser,  Q'o  Mo.,  603; 
Wilson  vs.  F/'lshi/,  57  Ga.,  239;  Haws/cms  vs.  Lofig,  74  K.  C, 
781;  Ki'onenherger  vs.  Bing^  55  Mo.,  121;  White  vs.  Canip- 
Ml,  25  Mich.,  403. 

§  5.  Account  Renilered  not  Objected  to,  is  Ailmittcil. — Where  a 
party  send-,  by  mail,  a  statement  of  account  to  another  with 
whom  he  has  dealings,  which  is  received,  but  not  replied  to 
within  a  reasonable  time,  the  acquiescence  of  the  party  is  taken 
as  an  admission  that  the  acconnt  is  correctly  stated;  and  what 
is  a  reasonable  time  in  this  connection,  is  a  question  for  the 
jury  to  determine,  under  all  the  circumstances  of  the  case, 
considering  the  nature  of  the  business,  the  distance  of  the 
parties  from  each  other,  and  the  means  of  communication 
between  them.  Bailey  vs.  Bensley,  87  111.,  556  ;  Darhy  vs. 
Lasirapes,  28  L.  Ann.,  605  ;  Powers  vs.  P.  lid.  Co.,  65  Mo. 
658. 

When  two  parties  have  running  accounts  with  each  other, 
and  a  statement  of  the  account  is  made  by  one  party  and  sub- 
mitted to  the  other,  and  the  latter  acquiesces  in  its  correct- 
ness, the  law  will  regard  it  as  a  stated  account,  by  which  both 
parties  will  be  bound,  unless  it  can  be  shown  that  some  error 
or  mistake  has  been  made,  or  fraud  practiced;  and  the  burden 
of  proving  the  error,  mistake  or  fraud,  is  on  the  party  alleg- 
ing it.     Bradley  vs.  Richardson,  2  Blackf .  (U.  S.),  354. 

When  two  parties  have  a  running  account,  and  one  makes  a 
statement  of  the  account  and  sends  it  to  the  other,  by  mail, 
and  the  latter  keeps  it  an  unreasonable  time,  without  making 
any  objection  to  it,  he  must  be  held  to  have  consented  to  its 
being  correct,  and  he  will  not  afterwards  be  permitted  to 
question  its  correctness,  unless  he  can  show  that  there  is  some 
error,  mistake  or  fraud  in  the  account,  of  which  he  was 
ignorant  when  he  so  consented  to  it.  Freas  vs.  Fruitt,  2 
Col.  T.,  489. 


bi  ACCOUNT     STATED. 

§  6.  May  be  Opened  for  Fraud  or  3Iistake. — Althongli  yon 
may  believe,  from  the  evidence,  tliattlie  plaintiff  sent,  and  the 
defendant  received,  the  accounts  of  sales  read  in  evidence  on 
this  trial,  and  that  the  defendant  made  no  objection  to  them  at 
the  time  they  were  received,  still,  if  yon  further  believe,  from 
the  evidence,  that  said  accounts  of  sales  contained  erroneous 
charges  or  false  accounts,  and  that  the  plaintiff  knowingly 
concealed  from  the  defendant  the  fact  of  their  being  erroneous 
or  false,  and  that  the  defendant  did  not,  and  could  not,  by  the 
exercise  of  reasonable  care,  have  ascertained  or  discovered 
such  errors  or  false  statements,  then  a  failure  on  his  part  to 
object  to  said  accounts,  at  the  time  of  receiving  them,  does  not 
in  law  estop  him  from  afterwards  showing  the  truth  in  refer- 
ence to  the  matters  contained  in  such  statements.  Ya)idever 
vs.  Stalesir,  39  j^.  J.  Law,  593;  Petut  vs.  Crawford^  hi 
Miss.,  43;  Anthony  vs.  Bay,  52  Howard,  X.  Y.  Pr.,  35;  1 
Am.  and  Eng.  Ency.,  125;  Dufy  vs.  Eicl^ey,  63  Wis.,  312. 

§  7.  Contradicting  Receipt. — The  court  instructs  the  jury  that 
a  receipt  is  hui  prima  facie  evidence  of  payment,  and  may  be 
contradicted  by  parol  testimony;  and  if  the  jury  believe,  from 
the  evidence,  that  the  plaintiff  did  the  extra  work  for  which 
this  suit  is  brought,  at  the  request  of  the  defendant,  expressed 
or  implied,  and  that  defendant  has  not  been  paid  for  the  same, 
and  further,  that  the  receipt  introduced  in  evidence  was  not 
intended  to  cover  that  item,  or  that  the  item  was  overlooked, 
and  by  the  mistake  of  the  parties  not  included  in  the  settlement 
when  the  recei])t  was  given,  then  the  jury  should  find  for  the 
plaintiff  as  to  that  item.  2  Pars,  on  Cont.,  555;  1  Greenl.  Ev., 
§  305;  Branch  vs.  Bawson^  36  Minn.,  193. 

§  8.  Receipt  Prima  Facie  Correct. — The  jury  are  instructed, 
that  a  re.ceipt  which  says  on  its  face  that  it  is  a  receipt  in  full, 
must  be  taken  to  be  in  full  of  all  matters  which  were  claimed, 
or  could  have  been  brought  forward  at  the  time  it  was  given, 
unless  it  appears,  by  a  preponderance  of  the  evidence,  that 
some  item  or  matter  of  claim  was  omitted  by  mistake  of  the 
parties,  or  by  the  fraud  of  the  person  taking  the  receipt.  1 
Gieenl,  Ev.,  §  212 ;  ISlierman  vs.  Crosby,  11  Johns.  70. 


ACCOUNT    STATED.  55 

§  9.     Settlement    and  Receipt  Obtained  by    Duress. — If   you 

believe,  from  the  evidence,  that  at  the  time  of  the  alleged 
settlement  between  the  parties,  and  when  the  receipt  in  ques- 
tion was  given,  the  plaintiff  was  in  embarrassed  circumstances 
financially,  and  that  he  had  money  due  to  him  from  the 
defendant  and  from  other  persons,  and  that  he  was  dependent 
upon  receiving  prompt  pay  from  the  defendant  and  from  such 
other  persons,  to  save  himself  from  serious  loss  or  financial 
ruin,  that  defendant  knew  all  this,  and  if  the  jury  further 
believe,  from  the  evidence,  that  the  plaintiff  then  claimed  that 
there  was  due  to  him  from  the  defendant  a  much  larger  sum 
than  ($1,000),  and  that  the  defendant  for  the  purpose  of  com- 
pelling plaintiff  to  accept  ($1,000)  in  full,  of  the  amount  so 
claimed  by  him,  refused  to  pay  the  plaintiff  any  portion  of 
what  was  due,  except  upon  condition  that  the  plaintiff  should 
accept  the  ($1,000)  in  full  payment,  and  give  a  receipt  in  full 
of  all  demands,  and  also  threatened  to  take  steps  to  stop  pay- 
ment to  plaintiff  by  the  other  persons  so  indebted  to  him,  and 
that  by  these  means  the  plaintiff  was  induced  against  his  free 
will  and  consent  to  accept  the  ($1,000)  and  to  give  the  receipt 
in  full,  then  the  plaintiff  is  not  bound  by  such  alleged  settle- 
ment nor  by  the  receipt  as  a  receipt  in  full.  Vyne  vs.  Glenn, 
41  Mich.,  112;  Sholeij  vs.  Mumford,  60  K  Y.,  49S;  Stenton 
vs.  Jerome,  54  K.  Y.,  480. 

If  you  believe,  from  the  evidence,  that  at  the  time  of  the 
alleged  settlement  and  the  giving  of  the  receipt  in  question, 
the  defendant  was  indebted  to  the  plaintiff  for  work  and  ma- 
terial furnished  under  the  building  contract  put  in  evidence, 
and  that  he  then  claimed  that  there  was  then  due  to  him  from 
the  defendant  more  than  ($1,000),  and  also  that  plaintiff  was 
indebted  in  a  considerable  amount  for  material  used,  and  to 
the  men  employed  by  him  in  doing  said  work,  and  that  he 
was  dependent  upon  the  money  due  to  him  from  defendant  to 
pay  what  he  owed  for  such  labor  and  material,  and  that  a  fail- 
ure to  promptly  pay  these  debts  of  his  would  result  in  serious 
loss  to  him,  and  that  defendant  knew  all  this  and  refused  to 
pay  the  plaintiff  any  portion  of  what  he  owed  him,  except 
upon  condition  that  he  accept  ($1,000)  in  full  payment  and 


50  ACCOUJSfT    STATED. 

give  a  receipt  to  that  effect,  and  that  tlie  plaintiff  was  induced 
bj  these  means,  against  his  free  will  and  consent,  to  agree  to 
accept  ($1,000)  in  full  and  to  give  the  receipt  in  question,  then 
such  settlement  is  not  binding  upon  the  plaintiff,  nor  is  he 
bound  by  the  receipt  as  a  receipt  in  full. 


CHAPTEK  IV. 

AGENCY. 


Sec.    1.  General  instructions  of  principal. 

2.  Departure  of  business  of  principal. 

3.  Agency  must  be  shown,  when. 

4.  Agency  presumed  to  continue,  when. 

6.  Warranty  within  the  apparent  scope  of,  etc. 

6.  Public  officer,  principal  not  bound  by  acts  of. 

7.  In  case  of  torts. 

8.  Goods  furnished  minor  child. 

9.  Goods  furnished  the  wife. 

10.  Wife  living  separate  from  the  husband  without  her  fault. 

11.  In  case  of  desertion  by  wife. 

12.  Ratification  of  agent's  acts. 

13.  Ratification  must  be  with  full  knowledge. 

14.  Ratification  without  full  knowledge. 

15.  Ratification  cannot  be  as  to  part  only. 

16.  Permitting  one  to  hold  himself  out  as  agent. 

17.  Agent  personally  liable. 

18.  Notice  to  an  agent  binding,  when. 

19.  Good  faith  required  of  the  agent. 

20.  Corporations  only  act  by  agents. 

21.  Corporations  may  ratify  unauthorized  acts. 

22.  Individual  members,  etc.,  cannot  act. 

§  1.  General  Instructions  of  Principal. — The  jniy  are  in- 
structed, that  where  the  directions  of  the  principal  to  his 
agent  are  general  as  to  the  business  which  he  is  intended  to 
perform,  then  the  principal  is  held  to  have  confided  in  the  dis- 
cretion of  his  agent,  and  he  will  be  answerable  for  all  the  acts 
of  the  agent  in  the  performance  of  the  duty  required. 

§  2.  Departure  from  Business  of  Principal. — The  jury  are 
instrncted,  that  if  the  directions  of  the  principal  to  his  agent 
are  specific  to  do  some  specific  thing,  and  the  servant  disre- 
gards his  specific  instructions,  and  goes  about  doing  something 
else,  not  reasonably  within  the  scope  of  the  authority  given, 

(57) 


5  8  AGENCY. 

the  master  will  not  be  liable  for  sucli  acts  of   tbe   servant, 
unless  they  are  afterwards  ratified  by  him. 

§  3.  Agency  Miist  be  Shown,  When. — The  jury  are  instructed, 
that  the  plaintiff  cannot  recover  in  this  action  against  the 
defendant  C.  D.  for  the  acts  or  alleged  trespasses  of  the  said 
A.  B.  without  establishing  the  relation  of  principal  and  agent 
between  the  said  A.  B.  and  the  said  C.  D.,  and  the  mere  fact 
that  the  former  was  in  the  employ  of  the  latter  is  not  alone 
sufficient  to  establish  snch  agency  and  the  jury  will  not  be 
justified  in  finding  a  verdict  against  the  defendant  C.  D.,  nnless 
they  believe  from  the  evidence  that  the  defendant  C.  D. 
directed  or  authorized  the  seizure  of  the  goods  as  charged  in 
the  declaration,  or  that  he  ratified  or  approved  the  act  after 
it  was  done,  or  else  that  the  said  A.  B.  in  seizing  the  goods  was 
acting  as  the  agent  of  the  said  C.  D.  and  within  the  scope  of 
his  general  authority  as  such  agent.  And  tlie  jury  are  further 
instructed  that  if  they  believe  from  the  evidence  that  the  said 
A.  B.  was  in  the  employ  of  the  said  defendant  at  the  time  in 
question  in  the  capacity  of,  etc.,  and  thai  his  duties  were  con- 
fined to,  etc.,  then  it  would  not  be  within  the  scope  of  his 
general  authority  as  agent  of  the  said  C.  D.  to  seize  the  goods 
of  the  plaintiff  as  charged  in  the  declaration. 

You  are  instructed,  that  a  principal  is  bound  by  the  acts  of 
his  agent  only  so  far  as  those  acts  are  specially  authorized  bj' 
the  principal,  or  are  within  the  scope  of  the  agent's  apparent 
authority;  unless  such  acts  are  afterwards  ratified  by  the  prin- 
cipal. 

§  4,  Agency  Presumed  to  Continue,  When. — The  jury  are 
instructed,  that  it  is  a  rule  of  law,  that  when  a  person  is  sliown 
to  have  been  an  agent  of  another  in  a  jmrticular  business,  and 
continues  to  act  as  such  agent,  within  the  scojie  of  his  former 
authority,  it  will  be  presumed  that  his  authority  continues, 
and  his  acts  will  bind  his  princi])al,  unless  the  person  with 
whom  he  deals  has  notice  that  his  agency  has  ceased,  or  until 
after  the  lapse  of  such  a  length  of  time  as  ought  to  put  a  rea- 
sonably prudent  man  on  inquiry  as  to  the  continuance  of  such 
agency.  BarHey  \&.  lienssaJaer,  etc.,  Co.,  71  ]^.  Y.,  205; 
Packer  vs.  Ilhikley,  etc.,  122  Mass.,  484;    Mur_phy  vs.  Otten- 


AGENCY.  59 

heimer,  84  111.,  39;   Dowe^  etc.^  vs.  Linder,  59  Ind.,  007;  Sum- 
mermlle  vs.  Han.  &  St.  Joe  Rd.  Co.^  62  Mo.,  391. 

You  are  instructed,  that  no  statement  made  by  the  witness, 
T.  B.,  either  before  or  after  the  delivery  of  the  note  offered  in 
evidence,  or  in  relation  to  the  transaction  out  of  which  it 
grew,  is  binding  uj^on  the  defendants,  unless  it  was  made  in 
their  presence  and  hearing  without  objection  from  tliem,  or 
unless  the  jury  believe  from  the  evidence  that  the  said  T.  B. 
was  acting  as  the  agent  of  the  said  defendants  in  regard  to  the 
subject-matter  of  such  statements  at  the  time  the  statements 
are  alleged  to  have  been  made;  and  unless  the  jury  believe 
from  the  evidence  that  the  said  A.  B.  was  at  the  time  the 
agent  of  the  defendants  and  authorized  1o  represent  them 
in  regard  to  the  said  note,  etc.,  etc.,  the  jury  should  disregard 
all  evidence  of  any  statements  made  by  him  to  the  plaintiffs 
in  the  absence  of  the  defendants,  purporting  to  come  from 
them  or  to  give  expression  to  their  wishes,  intentions  or  pur- 
poses in  regard  to,  etc. 

§  5.  Warranty  within  the  Apparent  Scope  of,  etc. — The  court 
further  instructs  the  jury,  that  while  it  is  true  that  the  ])rin- 
cipal  is  not  bound  by  the  unauthorized  acts  of  his  agent,  when 
such  acts  are  beyond  the  scope  of  the  agent's  apparent  author- 
ity, yet  the  principal  is  bound  by  a  warranty,  made  by  an  agent, 
of  the  quality  of  an  article  sold  by  the  agent,  when  the  buyer 
is  justified,  from  the  nature  of  the  business  and  the  manner  of 
doing  it,  in  believing  that  the  authority  to  make  the  warranty 
had  been  given,  and  the  buyer  had  no  means  of  knowing  the 
limitation  of  the  agent's  authority.  1  Parsons  on  Cont.,  52; 
Murray  v.  Brool's,  41  la.,  45. 

You  are  instructed,  that  it  is  a  rule  of  law  that  a  person 
dealing  with  one  known  to  be  an  agent,  or  claiming  to  be  such, 
is  bound,  at  his  peril,  to  see  that  the  agent  has  authority  to 
bind  his  principal  in  such  transaction,  or  that  the  agent  is  act- 
ing within  the  scope  of  his  apparent  authority.  Peahodij  v. 
Eord,  46  111.,  242. 

§  6.     Public    Officer. — The  jury  are  instructed,  that  it  is  a      . 
general  rule  that  if  a  special   agent,  whose   authority  is  con-       y 
ferred  by  statute  or  by  orders  of  court,  or  one  acting  in  the       / 


60  AGENCY. 

capacity  of  a  public  officer,  acts  outside  of  tlie  authority  con- 
ferred, the  principal  will  not  be  bound  by  his  acts.  Dmrt  v. 
Hercules,  57  111.,  446. 

§  7.  Ill  Case  of  Torts. — The  jury  are  instructed,  that  if  a  tort 
or  wrong  is  committed  by  an  agent,  in  the  course  of  his  em- 
ployment while  pursuing  the  business  of  his  principal,  and  it 
is  not  a  willful  departure  from  such  employment  and  business, 
the  principal  will  be  liable  for  the  act,  although  it  is  done 
without  his  knowledge.  N'ohle  v.  Caymitigham,  74  111.,  51; 
Coolcy  on  Torts,  533;  Hamilton  v.  Third  Ave.  lid.  Co..  53 
K  T.,  25. 

You  are  instructed  as  a  matter  of  law,  that  the  principal  is 
held  liable  for  the  wrongful  acts  of  his  agents  if  done  in  the 
course  of  his  employment  as  such  agent  although  the  princi- 
pal did  not  authorize,  justify,  or  participate  in  such  acts,  or 
even  if  the  principal  forbade  the  acts  or  disproved  of  them. 
And,  in  this  case,  if  you  believe  from  the  evidence  that  the 
said  A.  B.  did  seize  and  take  the  property  of  the  plaintiff  men- 
tioned in  the  declaration  without  legal  or  justifiable  excuse  for 
so  doing  as  explained  in  these  instructions,  and  that  in  so  doing 
the  said  A.  B.  was  acting  as  the  agent  of  the  defendant  and 
within  the  scope  of  his  employment  as  such  agent,  then  you 
must  find  the  defendant  guilty  of  the  trespasses  complained  of. 

§  8.  Goods  Furnished  Minor  Cliild. — The  court  instructs  the 
jury,  as  a  matter  of  law,  that  if  a  father  permits  his  minor 
child  to  purchase  goods  on  his  account,  and  the  father  pays 
for  them  without  objection,  this  will  afford  a  presumption  of 
agency  with  full  power  to  make  like  purchases   in  the  future. 

You  are  instructed  that  either  an  express  promise,  or  cir- 
cumstances from  which  a  promise  may  be  inferred,  must  be 
proved,  by  a  preponderance  of  the  evidence,  before  the  father 
can  be  made  liable  for  goods  sold  and  delivered  to  his  minor 
child.  Gotts  vs.  Clat^  78  111.,  229;  Fowlhes  vs.  BaJier,  27 
Tex.,  135;  Schouler's  Domestic  Rola.,  329;  Stoain  vs.  Tf/ler, 
26  Yt,  9;  Thayer  vs.   White,  12  Met.,  343. 

You  are  in-tructed,  that  either  an  express  promise,  or 
circumstances  from  which  a  promise  by  the  father  may  be 
inferred,  is  essential,  in  all  cases,  to  bind  him  for  necessaries 


AGENCY.  G 1 

fnrnislierl  his  infant  cliild  by  a  third  person.  Where  the  father 
and  mother  separate  by  mutual  consent,  and  tlie  father  permits 
the  mother  to  take  the  children  witli  her,  then  the  fatlier  con- 
stitutes the  mother  his  agent  to  provide  for  his  children,  and 
he  is  bound  by  her  contracts  for  necessaries  furnished  for 
them.     McMillan  vs.  lee,  78  111.,  443. 

§  9.  Goods  Furnished  the  AVife. —  The  jury  are  instructed, 
that  where  goods,  necessary  and  suitable  to  the  position  in  life 
of  a  wife  living  with  her  husband,  are  sold  to  lier  on  the 
credit  of  her  husband,  and  charged  to  him,  a  Jury  will  be  jus- 
tified in  finding  that  the  wife  was  the  agent  of  her  husband  to 
make  the  purchases;  and,  in  this  case,  if  the  jury  believe  from 
the  evidence,  that  the  goods,  for  the  price  of  which  this  suit 
is  brought,  were  fnrnished  to  the  defendant's  wife  while  she 
was  residing  with  liim,  and  that  they  were  necessary  and  suit- 
able to  the  position  in  life  of  the  wife,  then  the  defendant  is 
liable  to  pay  for  the  same;  unless  the  jury  further  believe,  from 
the  evidence,  that  the  defendant  had  forbidden  the  plaintiff 
selling  goods  to  his  wife  on  credit.  1  Pars,  on  Cont,  287; 
Schonler's  Dom.  Eela.,  77. 

You  are  instructed,  as  a  matter  of  law,  that  if  a  husband 
neglects  to  furnish  his  wife,  while  living  with  him,  with  all 
articles  of  necessity  suitable  to  his  condition  in  life,  then  the 
wife  may  procure  them  of  others,  and  the  husband  will  be 
liable  to  pay  for  the  same. 

You  are  instructed,  as  a  matter  of  law,  that  if  a  husband 
neglects  to  provide  his  wife  and  family  with  articles  of  neces- 
sity suitable  to  his  condition  in  life,  the  wife  may  procure 
them  of  others,  and  the  husband  will  be  liable  to  pay  for 
them.  The  term,  article  of  necessity,  in  this  connection,  in- 
cludes whatever  things  are  proper  to  be  nsed  in  the  family, 
and  suitable  to  the  manner  of  life  which  the  husband  author- 
izes or  permits.     Clark  vs.  Cox^  32  Mich.,  204. 

You  are  further  instructed,  as  a  matter  of  law,  that  a  hus- 
band will  not  be  liable  for  necessaries  purchased  by  his  wife 
without  his  knowledge  or  consent,  if  such  goods  are  purchased 
from  one  with  whom  there  has  been  no  previous  dealings  by 
the  wife  on  the  credit  of  the  husband;  provided  the  jury 
believe,  from  the    evidence,  that   the  husband   had  suitably 


G2  AGENCY. 

supplied  liis  wife  witli  such  necessaries,  or  with  the  money 
with  which  to  buy  thera.  A  tradesman  in  such  case  supplies 
goods  to  the  wife  at  his  peril,  if  the  husband  is  guilty  of  no 
neglect  in  the  premises.     Ihid. 

§  10.  AVife  Livin;?  Separate  from  the  Hnsband  without  her 
Fault. — If  the  jury,  believing  from  the  evidence  that  the  plaint- 
iff sold  the  goods  for  which  this  suit  is  brought,  to  the  defend- 
ant's wife  while  she  was  living  separate  and  apart  from 
him  without  his  consent,  still  the  defendant  will  be  liable  to 
pay  for  the  same  if  the  jury  further  believe,  from  the  evidence, 
that  the  goods  furnished  were  necessary  and  suitable  and 
proper  for  the  wife,  regard  being  had  to  the  condition  in  life 
of  herself  and  husband,  and  that  the  wife  had  good  and  suffi- 
cient cause  for  living  separate  and  apart  from  her  husband,  as 
explained  in  these  instructions;  and  also  that  he  had  failed  and 
refused  to  furnish  her  such  necessaries  or  the  money  with 
which  to  purchase  them.      Thorpe  vs.  Shaj)leigh,  67  Me.,  235. 

§  11.  In  Case  of  Desertion  by  Wife. — The  jury  are  instructed, 
as  a  matter  of  law,  that  if  a  wife  deserts  her  husband  without 
sufficient  cause,  as  explained  in  these  instructions,  or  remains 
separate  from  him  without  liis  consent,  and  without  good  and 
sufficient  cause,  he  will  not  be  liable  for  necessaries  purchased 
by  her.  Oinson  \b.  Heritage,  4:^  Ind.,  73;  Bevier  vs.  Gallo 
way,  71  111.,  517. 

You  are  further  instructed,  that  if  you  believe,  from  the 
evidence,  tliat  the  plaintiff  sold  the  goods  sued  for,  to  the 
defendant's  wife,  while  she  was  living  separate  and  apart  from 
her  husband,  without  his  consent,  then  to  entitle  the  plaintiff 
to  recover  in  this  suit  he  must  prove,  by  a  preponderance  of 
evidence,  that  the  wife  had  just  and  legal  reason  to  live  separate 
from  her  liusband,  as  explained  in  these  instructions.  Hea  vs. 
Durkec,  25  111.,  504;    ^Yilson  vs.  Bishop,  10  111.  App.,  5S8. 

If  you  believe,  from  the  evidence,  that  the  merchandise  for 
which  this  action  is  brought  was  sold  by  plaintiff  to  defendant's 
wife,  and  that  at  that  time  she  was  living  apart  from  her  hus- 
band, and  that  the  plaintiff  was  knowing  to  that  fact,  then  to 
entitle  the  plaintiff  to  recover,  the  burden  of  proof  is  on  the 
plaintiff  to  show,  by  a  preponderance  of  evidence,  that  the 


AGENCY.  63 

wife  was  living  apart  from  her  husband,  with  his  consent,  or 
that  the  wife  was  justified  in  leaving  her  husband  on  account 
of  his  cruel  treatment,  or  that  his  conduct  was  so  violent  as  to 
lead  her  to  reasonably  fear  personal  violence,  or  on  account  of 
some  other  fault  of  the  husband,  which  rendered  it  improper 
for  her  to  live  and  cohabit  with  him.  Ilea  vs.  Durkee^  25  111., 
503;  Bevier  vs.  Galloivay,  71  111.,  517. 

You  are  instructed,  that  a  husband  is  not  bound  by  law  to 
support  his  wife,  or  even  to  furnisli  her  with  necessaries,  while 
she  is  living  separate  and  apart  from  him,  if  she  so  lives,  with- 
out his  consent,  and  without  any  good  or  sufHcient  reason  or 
cause  therefor,  as  explained  in  these  instructions. 

And  in  this  case,  though  you  may  believe,  from  the  evi- 
dence, that  the  goods  in  question  were  furnished  by  the  plaint- 
iff to  the  wife  of  the  defendant,  as  claimed,  and  that  the  goods 
were  necessaries,  and  suitable  and  proper  to  a  pej-son  in  her 
condition  and  station  in  life,  still,  if  you  further  believe,  from 
the  evidence,  that  when  the  goods  were  furnished  to  Mrs. 
"A,"  she  was  living  separate  and  apart  from  her  husband 
without  his  consent,  and  without  any  good  or  sufHcient  cause 
therefor,  as  explained  in  these  instructions,  then  the  defendant 
is  not  liable  to  pay  for  the  goods  so  furnished,  simply  from 
the  relationship  of  husband  and  wife  between  himself  and  Mrs. 
"A."     Schouler's  Dom.  Eela.,  90;  1  Bishop  M.  &  D.,  §  573. 

§  12.  Ratification  of  Agent's  Acts. — The  law  is,  that  where 
a  person's  name  is  signed  to  a  promissory  note  without  his 
autliority,  he  may  afterwards  ratify  its  execution  and  acknowl- 
edge its  binding  validity  upon  him,  and  if  lie  does  this  his 
relation  to  the  note  will  be  precisely  the  same  as  if  he  executed 
it  personally.  Paul  vs.  Berry ^  78  111.,  158;  Eadie  vs.  Ashhaugh, 
44  la.,  519. 

You  are  instructed,  that  a  principal  who,  with  the  full 
knowledge  of  all  the  material  facts  affecting  his  rights,  receives 
the  benefit  of  an  unauthorized  agreement,  made  for  him  by  one 
purporting  to  be  his  agent,  is  precluded  thereby  from  question- 
ing the  agent's  autliority  in  the  transaction.  PlJce  vs.  Douglass^ 
28"Ark.,  59. 

You  are  further  instructed,  that  a  principal,  when  fully 
informed    of  his  agent's   acts,    must   dissent   from  them  in  a 


64  AGENCY. 

reasonable  time,  or  lie  will  be  beld  to  liave  ratilied  tbera. 
And  in  tbis  case,  if  you  believe,  from  tlie  evidence,  tliat  de- 
fendant received  full  information  of  tlie  acts  of  tbe  said  A.  B. 
in  tlie  premises,  on  or  bcfoj'e,  etc.,  and  remained  silent  and 
inactive  until,  etc.,  tlien  tliat  was  not  a  reasonable  time  in 
wliicli  to  dissent  from  tlie  acts  of  tbe  said  A.  B.  Meyer  vs. 
Morgan^  51  Miss.,  21;  Ilawlins  vs.  Lange,  22  Minn.,  557; 
Breed  vs.  Cent  City  Bh,  4  Col.,  481;  U.  S.  B.  S.  Co.  vs.  Rd., 
37  Obio  St.,  450;  Waterson  vs.  Bogers,  21  Kans.,  529;  Ileyn 
vs.  O'Bagan,  60  Micb.,  150. 

You  are  instructed,  tbat  altbougb  you  may  believe,  from 
tbe  evidence,  tbat  tbe  said  A.  B.  was  not  autborized  to  make 
a  bargain  witb  tbe  plaintiff  for  tbe  defendant,  in  relation  to, 
etc.,  yet  if  you  believe,  from  tbe  evidence,  tbat  tbe  said  A.  B. 
did  make  tbe  contract  for  tbe  defendant,  as  alleged  and  claimed 
by  tbe  plaintiff,  and  tbat  tbe  defendant,  witb  full  knowledge 
of  wbat  bad  been  done,  ratified  tbe  bargain  so  made,  then  tbe 
contract  will  be  as  binding  upon  tbe  defendant  as  if  be  bad 
autborized  tbe  said  A.  B.  to  make  tbe  biirgain  in  tbe  first 
instance.  City  of  Detroit  vs.  Jacl^son,  1  Doug.  (Midi.),  106; 
Hall  vs.  Chicago,  etc.,  R.  Co.,  48  Wis.,  317;  Stewart  vs.  Maker, 
32  Wis.,  344;  Drakely  vs.  Gregg,  8  Wall.  (U.  S.),  242. 

§  13.  Ratification  Must  be  Avith  Full  Knowleilge. — Tbe  Jury 
are  instructed,  tbat  before  a  person  can  be  bound  by  tbe  rati- 
fication of  an  act,  done  on  bis  bebalf  by  one  professing  to  act 
as  bis  agent,  it  must  appear,  by  a  preponderance  of  tbe  evi- 
dence, tbat  be  was  fully  informed  of  all  tbe  material  facts 
affecting  bis  rigbts  in  tbe  transaction,  and  unless  it  does  so 
appear,  be  will  not  be  bound  by  an  unautborized  act,  upon  tbe 
ground  of  ratification  alone.  Kerr  vs.  Sharp,  83  111.,  199; 
Bannon  vs.  Warfield,  42  Md.,  22;  Boberts  vs.  Rumley,  58  la., 
301;  ^tna  Lis.  Co.  vs.  A".  TF.  I.  Co.,  21  Wis.,  458;  Broctor 
vs.  Tows,  115  111.,  138. 

Tbat  wben  tbe  act  of  ratifying  tbe  act  of  tbe  agent  is 
claimed  to  be  implied,  from  a  knowledge  of  tbe  facts,  by  tbe 
principal,  it  must  appear,  by  a  preponderance  of  tbe  evidence, 
tbat  tbe  principal  bad  full  knowledge  of  all  tbe  facts  affecting 
his  interests  in  the  transaction.  Farwell  vs.  Meyer,  35  111. 
40 ;  Jemison  vs.  Barker,  7  Mich.,  355 ;  Corhn^'itt  vs.  Chicago, 
114  111.,  233. 


AGENCY.  C5 

§  14.  Rjitific.ation  without  Full  Knowledge. — The  court  in. 
stnicts  tlie  jury,  that  it  is  a  rule  of  law,  that  where  an  allcf^ed 
principal  does  anything  towards  ratifying  an  act  done  in  his 
behalf  by  an  unauthorized  person,  and  the  acts  of  ratification 
are  done  in  ignorance  of,  or  under  a  mistake  of,  any  of  the 
material  facts  affecting  the  interests  of  the  principal,  then  the 
act  of  ratification  will  not  be  binding  on  the  principal.  Mil- 
ler vs.  Board  of^  etc.,  44  Cal.,  166. 

§  15.  Ratification  Cannot  be  as  to  a  Part  Only. — The  jury  are 
mstructed,  as  a  matter  of  law,  that  if  a  person  adopts  a  con- 
tract made  on  his  behalf  by  an  agent,  who  had  no  authority  to 
make  it,  he  must  adopt  it  in  its  entirety;  he  cannot  adopt  it 
in  part  and  repudiate  it  in  part.  Southern  E,cp.  Go.  vs.  Palm- 
er, 48  Ga.,  85;  Wldner  vs.  Lane,  14  Mich.,  124;  Henderson 
vs.  Cu7nviings,  44  III.,  325;  Kreder  vs.  Trustees,  etc.,  31  la. 
547;  Menkins  vs.  Watson,  27  Mo.,  163;  Saveland  ys,.  Green, 
40  Wis.,  431 ;  TasJcer  vs.  Kenton  Ins.  Go.,  59  N.  H.,  438 ; 
Strasser  vs.  Gonldin,  54  Wis.,  102. 

§  16.  Permitting  One  to  Hold  Himself  Out. — If  the  jury  be- 
lieve, from  the  evidence,  that  at  the  time  the  contract  in  ques- 
tion is  alleged  to  have  been  made,  the  defendants  knew  that 
the  said  A.  B.  was  doing  business  and  buying  stock  in  their 
names,  as  their  agent,  and  made  no  objection  to  his  so  doing, 
then  the  defendants  would  be  bound  by  any  contract  within 
the  apparent  scope  of  sucli  business,  and  no  secret  arrange- 
ment between  the  defendants  and  the  said  A.  B.  would  be 
binding  on  tlie  plaintiff,  unless  he  had  notice  of  the  same. 

You  are  instructed,  that  if  a  person  knowingly  and  volun- 
tarily permit  another  to  liold  himself  out  to  the  world  as  his 
agent,  he  will  be  held  to  adopt  his  acts,  and  be  bound,  as 
principal,  to  the  person  who  gives  credit  to  the  one  acting  as 
such  agent.     Thurler  vs.  Anderson,  88  111.,  167. 

If  you  believe,  from  the  evidence,  that  in  the  summer  of, 
etc.,  the  defendants  knew  that  A.  B.  was  acting  as  their  agent, 
buying  stock  in  their  names,  and  voluntarily  permitted  him  to 
do  so,  and  you  further  believe,  from  the  evidence,  that  the 
said  A.  B.,  while  so  acting,  made  the  contract  alleged  in  plaint- 
ifi's  declaration,  then  the  defendants  would  be  bound  thereby, 
6 


66  AGENCY. 

whether  the  said  A.  B.  was,  in  fact,  their  agent  at  that  time  or 
not. 

§  17.  Agent  Personally  Liable. — If  the  jury  believe,  from  the 
evidence,  that  the  defendant  employed  the  plaintiff  to  do  the 
work  in  question,  and  that  the  plaintiff  did  the  work  under 
such  contract,  and  also  that  the  defendant  was  then  acting  as 
the  agent  of  another  in  procuring  said  work  to  be  done,  still, 
if  the  jury  further  believe,  from  the  evidence,  that  when  the 
plaintiff  was  so  hired  to  do  the  work,  the  defendant  did  not 
disclose  the  fact  that  he  was  acting  as  such  agent,  and  the 
plaintiff  then  had  no  notice  or  knowledge  of  such  agency, 
then  the  defendant  will  be  liable  to  pay  the  plaintiff  for  such 
labor. 

§  18.  Notice  to  an  Agent  Binding,  Wlien. — The  jury  are  in- 
structed, that  notice  to  an  agent  of  any  fact  concerning  the 
matters  of  his  agency,  is  the  same  as  notice  to  the  principal. 
The  law  prenimes  that  an  agent  transmits,  or  in  some  manner, 
communicates,  to  his  principal  all  information  received  by 
him  relating  to  the  matter  of  his  agency.  Saulshuri/  vs. 
Wimherlij,  60  Ga.,  78;  Roach  vs.  Carr,  IS  Kans.,  329;  Taggs 
vs.  Tenn.  M.  BTi.,  9  Heisk.,  479. 

Notice  to  A^ent,  not  Binding,  When. — The  jury  are  instructed, 
that  a  party  is  not  chargeable  with  notice  of  facts  within  the 
knowledge  of  his  agent  or  attorney,  where  the  agent  or  attor- 
ney acquires  such  knowledge  while  acting  as  the  agent  or 
attorney  of  another  person.  Harrington  vs.  McCollum^  73 
111.,  476;  Aultman  &  T.  Co.,  vs.   Webber,  4  111.  App.,  427. 

§  19.  Good  Faith  Required  of  the  Agent. — The  court  instructs 
the  jury,  as  a  matter  of  law,  that  if  an  agent  makes  any  profit, 
in  the  course  of  his  agency,  by  any  concealed  management, 
in  either  buying  or  selling,  or  other  transaction,  on  account 
of  the  principal,  the  profits  will  belong  exclusively  to  the  )u-in- 
cipal.  Cottom  vs.  Ilolliday,  59  III.,  176;  Love  et  al.  vs.  IIoss, 
62  Ind.,  255. 

If  you  believe,  from  the  evidence,  that  the  defendant,  A. 
B.,  was  the  agent  of  the    plaintiff"  in  making  tlie  purchase  of 


AGENCY.  67 

the  (land)  in  question,  and  that  as  such  agent  he  purchased  the 
{land)  for  {twelve)  dollars  per  acre,  for  plaintiff,  and  charged 
the  plaintiff  {Jifteeii)  dollars  per  acre,  representing  to  the 
plaintiff  that  he  was  compelled  to  pay  that  price  for  the  {land)^ 
and  received  that  amount  of  money  from  the  plaintiff  on  that 
account,  and  that  the  plaintiff,  when  he  paid  the  money,  was 
ignorant  of  the  pi^'ice  actually  paid  by  defendant,  then  the 
plaintiff  is  entitled  to  your  verdict  for  the  difference  between 
the  price  of  the  {laiid)  at  {twelve)  dollars  per  acre  and  its  price 
at  {ffteen)  dollars  per  acre,  and  interest  on  that  sum  at  {six) 
per  cent.  ])er  annum,  from  the  time  the  money  was  so  paid  by 
the  plaintiff. 

§  20.  Corporations  only  Act  by  Agents. — The  court  instructs 
the  jury,  that  corporations  can  only  act  or  contract  by  their 
officers  or  agents,  and  when  a  corporation  holds  certain  per- 
sons out  to  the  public  as  authorized  to  act  on  its  behalf,  then 
the  corporation,  like  an  individual,  will  be  bound  by  all  the 
acts  and  contracts  of  such  persons,  which  are  done  or  made 
within  the  apparent  scope  of  their  said  agency. 

And  if  you  believe,  from  the  evidence  in  this  case,  that  the 
defendant  corporation  appointed  F.,  B.  and  H.  as  a  building 
committee,  or  voluntarily  and  knowingly  held  them,  or  any  of 
them,  out  to  the  public  as  such  building  committee,  and  as 
authorized  to  act  and  make  contracts  on  its  behalf,  in  relation 
to  doing  the  work  in  question  in  this  case,  and  that  they  did 
make  the  contract  with  the  plaintiff  for  doing  the  work  in 
question,  then  the  corporation  will  be  bound  by  the  terms  of 
such  contract. 

§  21.  Corporation  May  Ratify  Unanthorized  Acts. — A  corpora- 
tion, like  an  individual,  may  be  bound  by  the  acts  of  one  as- 
suming to  act  as  its  agents,  if  it  ratify  the  acts  of  the  person 
so  professing  to  act  as  agent. 

Although  you  may  believe,  from  the  evidence,  that  the 
plaintiff  performed  the  services  in  question,  for  the  defendant, 
at  the  request  of  some  officer  or  member  of  the  corporation 
not  x^reviously  authorized  to  contract  in  reference  thGlelo,  siilJ, 
if  you  further  believe,  from  the  evidence,  that  the  work  in 
question  was  prosecuted  with  the  knowledge  aua  consent  of 


68  AGENCY. 

the  officers  and  agents  of  tlie  corporation  Laving  charge  and 
control  of  its  property  and  affairs,  and  that  the  corporation 
accepted  and  held  the  benefits  arising  from  such  labor  and 
services,  then,  as  a  matter  of  law,  tlie  corporation  will  be  held 
to  have  ratified  tlic  acts  of  snch  unauthorized  person,  and  it 
will  be  bound  thereby. 

§  22.     Individual  Membei*s  of  Board  Cannot  Act. — The  su]  er- 

visors  have  no  power  to  act  individually;  it  is  only  when  con- 
vened and  acting  together  as  a  board  of  supervisors  that  they 
represent  and  bind  the  county  by  their  acts;  and  the  chairman 
of  the  board  has  no  greater  authority,  in  his  individual  capac- 
ity, than  any  other  member. 

When  the  officers  or  agents  of  a  public  corporation  have  no 
power  with  respect  to  a  given  matter,  neither  their  acts  nor 
their  individual  knowledge  in  respect  to  the  matter  can,  in 
any  way,  bind  or  affect  such  corporation.  Johnson  vs.  S.  Dist.., 
67  Mo.,  319. 

Individual  members  of  a  corporation  cannot,  unless  author- 
ized, bind  the  body  by  express  promises;  hence  it  follows  that 
/  a  corporate  engagement  cannot  be  implied  from  their  unsanc- 

/  tioned  conduct   or   their   declarations.     Benton  vs.  Brd.  of 

Sups.,  84  111.,  384;   Harrison  vs.  Liston  Dist.,  47  la.,  11. 

The  members  of  the  county  court  can  only  bind  their 
county,  in  matters  of  claims,  when  acting  as  a  court,  and  their 
records  are  the  only  admissible  evidence  of  their  judicial  acts. 
McLaney  vs.  Co.  of  Marlon,  77  111.,  488. 


\ 


CHAPTEE  V. 

ALTEEATION  OF  WRITTEN"  INSTRUMENTS. 


Sec.     1.  Material  alteration  renders  instrument  void. 

2.  Not  affected  by  iuiniuterial  alteration. 

3.  Alteration  by  stranger. 

4.  Alteration  by  party  not  authorized. 

5.  Alteration  adopted  by  maker. 

6.  Presumed  to  be  made  after  execution. 

7.  No  presumption  of  law  as  to  when  alteration  was  made. 

§  1.  Material  Alteration  Rentiers  Instrument  Void. — The  court 
instructs  the  jury,  that  any  material  alteration  in  the  terms  of 
a  promissory  note,  after  it  has  once  been  made  and  delivered, 
will  render  the  note  void  as  against  all  the  parties  to  the  note, 
who  did  not  know  of  and  consent  to  the  alteration  at  the  time 
it  was  made,  or  unless  such  persons  have  in  some  manner  sub- 
sequently ratified  the  act.  Schnewind  vs.  HacJcet,  54  Ind., 
248  ;  Dicherman  vs.  Miner^  43  la.,  508  :  Evans  vs.  Foreman^ 
60  Mo.,  449;  Bradley  vs.  Mann,  37  Mich.,  1  ;  Greenfeld  S. 
Bk.  vs.  Stowell,  123  Mass.,  196;  Eewins  vs.  Cargill,  67 
Me.,  554 ;  Brown  vs.  Straw,  6  Neb.,  536 ;  Fuller  vs.  Green, 
64  Wis.,  159. 

The  court  instructs  the  jury  that  if  they  believe  from  the 
evidence,  that  the  words  "  after  maturity,"  have  been  erased 
in  the  note  since  the  defendant  A.  B.  signed  it,  without  his 
knowledge  or  consent,  this  would  be  a  material  alteration  of 
the  note,  and  if  done  by  any  person  then  holding  the  note  as 
owner  or  by  any  one  authorized  by  the  owner  to  do  so,  would 
render  the  note  void  as  against  the  defendant  A.  B.,  although 
the  jury  may  believe  from  the  evidence  that  the  owner  took 
the  note  in  the  regular  course  of  business  before  due,  for  value 
and  without  notice  of  such  alteration,  unless  the  jury  further 
believe  from  the  evidence  that  the  said  A.  B.,  has  in  some 
manner  ratified  the  said  act  as  explained  in  these  instructions 
upon  that  point.  Holmes  vs.  Turmjper,  22  Mich.,  427; 
McCoy  vs.  Lockwood,  71  Ind.,  319. 

r69) 


70  ALTERATION    OF    WEITTEN    IKSTKUMENTS. 

If  the  jury  believe  from  the  evidence  that  the  defendant 
H.  signed  the  note  in  question,  as  a  surety  for  the  other 
makers  of  the  note,  and  that,  after  he  had  so  signed  it,  by  an 
arrangement  between  the  otlier  makers  of  the  note  and  the 
holder  (the  rate  of  interest  was  changed  from  six  per  cent,  to 
seven)  without  the  knowledge  or  consent  of  the  said  H.,  such 
an  alteration  was  a  material  one,  and  releases  the  said  H.  from 
all  liability  on  the  note,  although  such  alteration  was  made 
without  any  fraudulent  intent  on  the  part  of  those  who  made  it. 
(If  proper,  add  clause  as  to  ratification.)  Harsh  et  al.  vs. 
Klei^Xyer,  28  Ohio  St.,  200  ;  Cohurii  vs.  Webb,  56  Ind.,  96 ; 
Draper  \8.   Wood,  112  Mass.,  315. 

If  the  jury  believe  from  the  evidence  that  since  the  defend- 
ant signed  his  name  to  the  note  In  question,  the  same  has  been 
altered  without  the  defendant's  knowledge  or  consent,  by  add- 
ing the  words,  etc. — then  the  said  note  is  void  as  to  him,  unless 
the  jury  believe  from  the  evidence  that  the  defendant  has  in 
some  manner  since  the  alteration  was  made  ratified  the  same, 
as  explained  in  these  instructions  upon  this  point.  Hamilton 
vs.  Hooper,  46  la.,  515. 

If  the  jury  believe  from  the  evidence  that  the  (paper)  read 
in  evidence  by  the  plaintiff  was  changed  or  altered,  by  insert- 
ing the  words,  etc. — by  the  plaintiff  or  by  any  one  acting  for 
liim  with  his  consent,  but  without  the  consent  of  the  defendant, 
after  it  was  delivered  to  the  plaintiff,  then  the  jury  should 
entirely  disregard  such  '^paper)  as  evidence  in  the  case — unless 
the  jury  further  believe  from  the  evidence  that  the  defendant 
has  in  some  way  ratified  the  alteration  since  it  was  made. 

And  in  determining  whether  such  change  or  alteration  has 
been  made,  the  jury  may  take  into  consideration  the  appear- 
ance of  the  paper,  the  statement  of  the  witnesses,  as  well  as 
any  and  all  otlier  evidence  of  any  fact  or  circumstance  proved 
in  the  case,  tending  to  throw  any  light  upon  that  question, 
Gomstock  vs.  Smith,  26  Mich.,  300. 

§  2.  Not  Affected  by  Immaterial  Alteration. — The  jury  are 
instructed,  that  it  is  iiot  every  alteration  in  a  written  instru- 
ment which  will  render  it  void  against  the  maker,  when  done 
without  liis  consent;  to  have  that  effect  the  alteration  must 
bo  a  material  one,  so  as  to  change  the  terms  of  the  instru- 


ALTERATION    OF    "WKITTEN    INSTRUMENTS.  71 

meiit;  and  in  this  case,  althongh  tlic  jury  may  believe  from 
tlie  evidence  that  the  note  in  question,  since  it  was  made  and 
delivered,  and  without  the  consent  of  the  defendant,  has  been 
changed  by  erasing  the  words,  etc. — and  inserting,  etc. — still 
this  would  not  be  a  material  alteration,  and  would  in  no  man- 
ner affect  the  liability  of  the  defendant  thereon.  Burnham 
vs.  Ayer,  35  :^.  H.  351. 

§  3.  Alteration  by  a  Stranger. — The  jury  arc  instructed, 
that  tlie  alteration  of  a  written  instrument  by  a  stranger  to  it, 
that  is,  by  a  person  who  is  not  the  owner  of  it,  and  who  claims 
no  interest  under  it,  if  done  without  the  authority,  consent  or 
knowledge  of  the  owner  or  person  interested  in  it,  does  not 
render  the  instrument  void,  but  the  parties  to  it  and  those 
claiming  under  them  are  still  bound  by  its  terms  as  originally 
written.  Brooks  vs.  Allen^  62  Ind.,  400;  U.  S.  Bk.  vs.  Roberts^ 
45  Wis.,  373. 

§  4.  Alteration  by  Party  not  Authorized. — If  a  person  profess- 
ing to  act  as  the  agent  of  the  holder  or  owner  of  a  note  makes 
an  alteration  in  it  supposing  he  has  authority  to  do  so,  when 
in  fact  he  has  no  such  authority,  then  such  alteration  does  not 
render  the  note  void.  It  will  still  be  a  subsisting  obligation 
according  to  its  terms  as  originally  written. 

And  in  this  case  if  the  jury  believe  from  the  evidence  that 
the  note  in  question  was  taken  by  the  said  A.  B.  as  the  agent 
of  C.  D.,  this  fact  alone  would  not  give  him  any  authority  to 
alter  the  note,  after  he  had  received  it  from  the  defendant; 
and  if  the  jury  further  believe  from  the  evidence  that  the 
said  A.  B.  after  he  had  received  said  note  did  alter  the  same 
by  erasing  the  words  "  after  maturity"  without  the  knowledge 
or  consent  of  the  defendant,  this  would  not  affect  the  plaintiff's 
right  of  recovery  on  the  note  as  originally  written,  provided 
the  jury  further  believe  from  the  evidence  that  such  alteration 
was  made  without  the  knowledge  or  consent  of  the  said  C.  D. 
while  he  was  the  owner  of  the  note.  Brooks  vs.  Alleji,  62 
Ind.,  400. 

That  one  who  has  been  entrusted  with  a  promissory  note  by 
the  maker  to  negotiate  it  has  no  implied  authority  to  make  an 
alteration  of  any  material  stipulation  expressed  in  the   instru- 


72  ALTEKATIO:^    OF    WRITTEN    INSTRUMENTS. 

ment;  and  it  can  make  no  difference  whctlier  an  alteration  is 
favorable  or  unfavorable  to  the  maker  of  the  note;  if  made 
without  his  knowledge  or  consent  it  renders  the  note  void  as 
to  him.  Cohurn  vs.  Wehb,  56  Ind.,  96;  Lemay  vs.  Williams^ 
32  Ark.,  166;  Hamilton  vs.  Hooper^  46  la.,  515;  Greenfield 
/Sav.  BJc.  vs.  Stoioell,  123  Mass.,  19G;  Ilewins  vs.  Cargill^  67 
Me.,  554;  Aldrich  vs.  Sinith,  37  Mich.,  408. 

§  5.  Alteration  Adopted  by  Maker. — Although  the  Jury  may 
believe,  from  the  evidence,  that  since  the  note  was  made  and 
delivered,  it  has  been  altered  by  striking  out  the  words,  etc., 
—and  inserting  the  words,  etc., — still,  if  the  jury  further 
believe,  from  the  evidence,  that  since  the  said  alteration  was 
made,  and  with  full  knowledge  of  all  the  facts,  the  defendant 
lias  promised  to  pay  it,  then  he  will  be  deemed  to  have  adopted 
the  alteration,  and  will  be  bound  to  the  same  extent  as  though 
the  alteration  had  been  made  before  the  note  was  delivered. 
Goodsjpeed  vs.  Cutler^  75  111.,  534;  £van8  vs.  Foreman,  60 
Mo.,  449;  Steioart  vs.  First  iV.  Blc.,  40  Midi.,  348;  KilMly 
vs.  Martin,  34  Wis.,  635;  Prouty  vs.   Wilson,  123  Mass.,  297. 

Note. — Upon  the  question,  -whether  the  law  presumes  an  evident  altera- 
tion or  interlineation,  in  a  written  instrument,  to  have  been  made  before  or 
after  execution,  the  authorities  are  in  conflict.  2  Pars,  on  Cont.,  722,  and 
Note  y. 

§  6.  Presumed  to  be  Made  after  Execution. — The  court  in- 
structs the  jury,  that  all  material  interlineations  in  a  deed  are 
presumed  to  have  been  made  after  the  execution  of  the  same, 
and  they  render  the  deed  void,  unless  they  are  explained  by 
the  party  claiming  the  benefit  thereof;  and  in  this  case  the 
jury  will  consider  the  deed  purporting  to  be  executed  by  J.  S. 
to  C,  and  read  in  evidence  by  the  defendant,  as  void  and 
worthless,  unless  they  believe,  from  the  evidence,  and  from  the 
appearance  of  the  deed,  that  the  interlineations  or  erasures  in 
question,  were  made  before  or  at  the  time  of  the  execution 
and  delivery  of  the  deed,  or  with  the  consent  of  the  maker 
thereof.  Montag  vs.  Linn,  23  111.,  551;  2  Pars,  on  Cont.> 
721. 

§  7.  No  Presumption  of  Law  as  to  When  Alteration  Was  Made. 
— Where  an   instrument  otiered  in  evidence   has  the  appear- 


ALTEKATION    OF    WKIT'I'KN    INSTRUMENTS.  73 

ance  of  liaving  been  altered,  as  when  a  portion  of  it  is  in  dif- 
ferent ink,  or  handwriting,  from  the  other  portions,  the  law 
raises  no  presum[)tion  as  to  when  the  change  was  made,  or  by 
whom;  but  these  are  questions  of  fact  to  be  found  by  the  jury; 
and  in  determining  these  questions  the  jury  should  look  at  the 
instrument  itself,  as  well  as  to  all  the  circumstances  in  evi- 
dence, for  an  explanation,  and  thus  determine  whether  the 
alteration  was  before  or  after  the  execution  of  the  instrument, 
and  with  or  without  the  consent  of  the  maker.  Milliken  vs. 
Martin,  06  111.,  13. 

In  this  case  the  parties  have  both  introduced  evidence  tending 
to  show  when  the  alleged  alteration  (or  erasure)  in  the  deed 
from  A.  to  B.  was  made,  and  in  such  cases  the  burden  of  proof 
is  upon  (the  party  offering  the  deed)  to  show  by  a  preponder 
ance  of  evidence  that  the  alleged  alteration  (or  erasure)  if  one 
has  been  made,  was  made  before  the  deed  was  delivered;  and 
if  the  jury  believe,  from  the  evidence,  that  the  deed  in  ques- 
tion has  been  altered  by,  etc.,  then,  unless  (the  party)  has  shown 
by  a  preponderance  of  evidence  that  such  alteration  was  made 
before  or  at  the  time  the  deed  was  delivered,  then  such  alter- 
ation renders  the  deed  void,  and  the  jury  should  find,  etc. 
Willett  vs.  Shepard,  34  Mich.,  106;  Tyree  vs.  Eives,  57 
Ala.,   173;  Haynes  vs.  Haynes,  33  Ohio  St.,  598. 


CHAPTER  VI. 

APPLICATION  OF  PAYMENTS. 


Sec.    1.     Debtor  may  direct,  if  be  does  not,  creditor  may. 
2.     When  neither  do,  then  the  law  will. 

§  1.  Debtor  May  Direct,  If  He  Does  Not,  Creditor  May.— The 
jury  are  instructed,  that  tlie  rule  of  law  is,  that  a  debtor,  owing 
his  creditor  money  on  distinct  accounts  which  are  all  due,  may 
direct  his  payments  to  be  applied  upon  either  debt,  as  he 
pleases.  If  the  debtor  makes  no  such  appropriation,  then  the 
creditor  may  apply  the  money  as  he  sees  fit;  and  if  neither 
party  make  a  specific  appropriation  of  the  money,  the  law  will 
appropriate  it  as  the  justice  and  equity  of  the  case  may  require. 
2  Parsons  on  Cont.,  629;  Bon'nell  vs.  Wilder,  67  111.,  327; 
Whittciker  vs.  Grovcr,  54  Ga.,  174;  Jones  vs.  Williams.^  39 
Wis.,  300;  Mich.  A.  liy.  Co.  vs.  Mellen,  44  Mich.,  321. 

Where  one  person  is  indebted  to  another  upon  different 
accounts,  or  for  different  debts,  and  the  debtor  makes  a  pay- 
ment, he  has  a  right  to  direct  upon  which  debt  the  payment 
shall  be  applied,  and  if  he  does  so  direct  the  payment,  the 
creditor  must  apply  the  payment  as  directed.  Miles  vs. 
Ogden,  54  Wis.,  573. 

A  debtor,  paying  money  to  his  creditor,  has  a  right  to  direct 
now  it  shall  be  applied,  and  the  creditor  has  no  right  to  dis- 
regard the  directions  of  the  debtor  in  that  respect.  When  the 
debtor  directs  the  application  of  money  at  the  time  of  pay- 
ment, such  application  can  not  be  changed  by  the  creditor 
without  the  consent  of  the  debtor.  JacJcson  vs.  Bailey.,  12 
111.,  159.     Detroit  II.  &  S.  W.  R.  Co.  vs.  Smith,  50  Mich.,  112. 

If  you  believe,  from  the  evidenc3,  that  at  tlie  time  of  the 
alleged  ]ra3'ments  the  defendant  owed  the  plaintiff  upon  two 
different  accounts,  both  of  which  were  due,  and  that  the  de- 
fendant made  ]\iym"nts  to  the  plaintiff  without  designating 
the  debts  to  which  such  payments  should  be  ajiplied,  then  the 

(74) 


Al'I'I.ICATION    OF    PAYMENTS.  75 

plahitifT  had  the  right  to  make  tlic  aj)i)!ication  to  such  debt  as 
he  saw  lit.     Bean  vs.  Brown^  54  N.  II.,  395. 

§  2.  AVhen  Neither  the  Creditor  nor  the  Debtor  M<akes  an  Ap- 
plication of  the  Payment,  Tlien  the  Law  Will  3Iake  It. — When  a 
creditor  holds  two  debts  against  anotlier,  and  one  is  secured 
and  the  other  not,  and  payments  have  been  made  by  the  debt- 
or, and  there  is  no  evidence  that  he  directed  their  applica- 
tion, and  no  evidence  of  how  they  were  applied,  the  law  will 
presume  they  were  credited  on  the  debt  for  which  there  was 
no  security.     Hare  vs.  IStegall^  60  III.,  380. 

When  a  debtor  owes  a  creditor  several  debts,  and  makes 
payments,  he  has  a  right  to  direct  their  application  to  any  one 
or  more  of  the  debts,  as  he  may  choose;  but  if  he  makes  pay- 
ments and  gives  no  directions,  then  the  creditor  may  apply 
them  as  he  may  choose.  When  such  payments  are  made,  and 
neither  party  makes  the  application,  the  law  will  apply  them 
in  the  manner  most  advantageous  to  the  creditor.  Harman 
vs.  Eiigleman,  49  Wis.,  278;  Langdon  vs.  Bowen^  46  Yt,  512. 

And  if  you  further  believe,  from  the  evidence,  that  neither 
the  plaintiff  nor  the  defendant  made  any  specific  application 
of  the  payments,  then  the  law  will  apply  the  payments  upon 
that  debt  which  was  first  due  in  point  of  time.  Sprague  et  al. 
vs.  HazenwinJcle^  53  111.,  419;  Alle7i  vs.  Brown,  39  la.,  330; 
Mills  vs.  Samider,  4  Neb.,  190;  Nortlily  vs.  Emmerson,  16 
Mass.,  374;  ^i.  Allans  vs.  Fairley,  46  Yt.,  448. 


CHAPTEE  VII. 
ATTACHMENT— PLEA  TRAVERSING  AFFIDAVIT. 


Sec.  1.  Non-residence. 

2.  About  to  depart  from  the  State,  etc. 

3.  What  is  not  a  departing  from  the  State. 

4.  About  to  depart  from  the  State,  how  proved. 

5.  Intent  to  depart,  how  shown. 

6.  Attachment  on  the  ground  of  fraud. 

§  1.  Non-resident  of  the  State. — If  the  jury  believe,  from  the 
evidence,  that  the  defendant,  G.  "W.  N.,  has  not  maintained  a 
residence  in  the  State  of  Illinois  previous,  and  did  not  reside 
in  this  state  at  the  issuing  of  the  attachment  in  this  case,  ac- 
cording to  the  legal  interpretation  of  the  word,  as  laid  down 
in  these  instructions ;  that  he  had  no  fixed  place  of  abode  or 

habitation;  that  he  never  kept  house  in  ]\I ;  that  he  spent 

only  a  portion  of  his  time  in  Illinois;  that  his  family  was 
divided,  unsettled  and  constantly  moving  about,  part  of  the 
time  in  Illinois  and  part  of  the  time  at  some  place  or  ])laces  in 
some  of  the  eastern  states,  then  the  defendant  was  not  a  res- 
ident of  the  State  of  Illinois  in  the  true  intent  and  meaning  of 
the  statute,  and  they  will  find  for  the  plaintiff,  Pullian  vs. 
N'elson,  28  111.,  112.     See  Residence  and  Domicile. 

§  2.  About  to  Depart  from  the  State,  etc. — The  court  instructs 
the  jury  that  the  burden  of  proof  is  upon  the  plaintiff  to  es- 
tablish, affii-matively,  that  the  defendant  was  about  to  depart 
from  the  state,  with  the  intention  of  removing  his  effects 
therefrom,  at  the  date  of  the  affidavit  in  question;  and  that  a 
failure  to  establish,  by  a  preponderance  of  proof,  either  the 
intention  to  remove  from  the  state,  or  his  intention  to  remove 
his  pro[;erty  from  the  state,  will  entitle  the  defendant  to  a 
verdict.  Ilawldns  vs.  Alhriyht,  70  111.,  87;  Costonvs.  Paige^ 
9  Ohio  St.,  397 ;  Hermann  vs.  Amedu,  30  La.  Ann.,  393. 

The  court  instructs  vou,  that  in  order  to  sustain  an  attach- 

(76) 


ATTACHMENT.  77 

ment  on  the  c^i-ouikI  tliat  tlio  debtor  is  about  to  dejart  from 
the  state,  with  the  intention  of  having  liis  ell'ects-  removed 
from  this  state,  it  nnist  ajipear  from  the  evidence: 

1st.  That  the  debtor  was  about  to  depart  from  the  state; 
and,  2d,  that  such  departure  was  witli  the  intention  of  having 
his  effects  removed  from  the  state. 

§  3.  What  is  Not  a  Departing  from  the  State. — That  to  author- 
ize the  issuing  of  an  attachment  against  the  property  of  a 
person,  it  is  not  enough  that  such  person  has  expressed  an  in- 
tention of  removing  from  the  state  at  some  future  time,  but 
the  jury  must  believe,  from  the  evidence,  that  the  person  was, 
at  tJie  time  of  the  issuing  of  the  attachment  writ,  then  about 
to  depart  from  the  state.  And  in  this  case,  unless  the  jury  be- 
lieve, from  the  evidence,  that  the  defendant,  at  the  time  the 
affidavit  in  question  was  made,  was  then  about  to  remove  from 
the  state,  with  the  intention  of  having  his  effects  removed 
therefrom,  they  should  find  for  the  defendant. 

The  court  instructs  you  that  the  simple  fact  of  a  debtor  pre- 
paring to  depart  from  the  state,  with  the  intention  of  remov- 
ing a  ])ortion  of  his  effects  therefrom,  is  not  of  itself  a  suffi- 
cient ground  to  sustain  an  attachment;  provided  you  believe, 
from  the  evidence,  that  there  would  remain  other  pro]3erty  of 
the  debtor  in  this  state  sufficient  to  pay  his  debts,  and  that 
there  w^as  no  intention  to  withhold  the  payment  of  the  debt 
upon  which  this  suit  is  brought. 

§  4.  About  to  Depart  from  the  State — How  Proved. — Tlie  jury 
are  instructed  that,  in  order  to  sustain  the  attachment  writ  in 
this  case,  it  is  not  necessary  for  the  plaintiff  to  prove  that  the 
defendant  was  about  to  remove  from  the  state  on  the  very  day 
the  suit  was  begun;  it  is  sufficient,  if  it  appears  from  the  evi- 
dence, that  the  defendant  was  intending  to  leave  the  state, 
with  his  property,  within  so  short  a  time  that  it  would  pre- 
vent the  plaintiff  from  collecting  his  debt  by  an  ordinary  suit 
at  law. 

Yon  are  instructed  that  if  you  believe,  from  the  evidence, 
that  the  defendant,  at  the  date  of  the  suing  out  of  the  writ  of 
attachment,  was  about  to  depart  from  this  state,  with  the  in- 


78  ATTACHMENT. 

tention  of  having  his  effects  removed  from  thip  state,  then  you 
should  fiud  the  issue,  as  to  tlie  truth  of  the  affidavit,  in  favor 
of  the  plaintiff. 

If  you  believe  from  the  evidence  that  at  the  time  the 
attachment  writ  in  this  case  was  sued  out  the  defendant  had 
property  in  *  *  *  county  in  this  state  sufficient  to 
satisfy  the  amount  of  all  indebtedness  owing  by  him,  which 
was  liable  to  execution,  and  which  the  defendant  was  not 
about  to  remove  from  the  state,  and  which  might  have  been 
discovered  and  reached  by  the  plaintiff"  by  the  exercise  of 
reasonable  diligence,  to  satisfy  any  judgment  which  the  cred- 
itors of  the  defendant  might  obtain  against  him,  then,  as  a 
matter  of  law,  you  should  tind  that  defendant  was  not  about 
to  remove  his  property  from  this  state,  etc. 

If  you  believe  from  the  evidence  that  at  the  time  when  the 
affidavit  in  question  was  made  by  the  plaintiff,  defendant 
was  indebted  to  plaintiff,  and  that  defendant  had  departed 
from  this  state  with  the  intention  of  having  his  effects  re- 
moved from  this  state^  or  that  he  was  about  to  depart  from 
this  state  with  the  intention  of  liaving  his  effects  removed 
from  this  state,  to  the  injuiy  of  the  plaintiffs,  and  that  such 
removal,  if  accomplished,  would  have  been  an  injury  to  the 
plaintiff's,  then  you  should  find  the  issue  upon  the  attachment 
affidavit  in  favor  of  the  plaintiffs. 

§  5.  Intent  to  Depart — How  Shown, — The  jury  are  in- 
structed, that  the  intention  of  the  defendant  regarding  his 
alleged  intention  to  remove,  and  whether  in  fact  he  was 
about  to  remove  himself  or  his  property  or  effects  from  this 
state,  to  the  injury  of  the  plaintiff,  may  be  inferred  from  all 
the  circumstances  given  in  evidence,  including  his  declarations 
and  his  conduct  so  far  as  they  appear  in  evidence  and  have 
any  bearing  upon  those  points — in  other  words,  his  intentions, 
and  whether  he  was  about  to  carry  out  such  intentions,  may 
be  ascertained  by  you  from  all  the  various  circumstances  from 
which  reasonable  men  in  the  everyday  concerns  of  life  judge 
of  each  other's  intentions,  so  far  as  these  various  circum- 
stances are  shown  by  the  evidence. 

You  are  further  instructed,  that  a  party's  intention  to  de- 
l^art  from  the  state,  and  to  remove  his  ])roperty  therefrom, 


ATTACHMENT.  79 

can  only  be  shown  by  liis  acts  and  statements,  and  a  parly  will 
be  presumed  to  have  intended  what  such  acts  and  statements 
fairly  and  reasonably  imply. 

And  in  this  case,  if  you  believe,  from  the  evidence,  that  the 
acts  and  statements  of  the  defendant,  at  and  about  the  time 
the  affidavit  in  question  was  made,  were  such  as  fairly  and 
reasonably  showed  an  intention  on  his  part,  at  that  time,  to 
remove  from  the  state,  with  the  intention  of  havinjr  his  effects 
removed  therefrom,  to  the  injury  of  his  creditors,  you  should 
find  for  the  plaintiff. 

§  6.  Attachment  on  the  Ground  of  Fraud. — Tliat  the  only  issue 
lor  the  jury  to  try  is  the  one  formed  upon  the  affidavit  in 
attachment;  and  that  is,  whether  or  not,  at  the  time  the 
attachment  writ  was  sued  out,  the  defendant  was  about  to 
fraudulently  assign,  conceal,  or  otherwise  dispose  of  his  prop- 
erty, so  as  to  hinder  or  delay  his  creditors  in  the  collection  of 
their  debts.  McCrosky  vs.  Leach,  63  111.,  61;  Miller  vs. 
McN'air,  65  Wis.,  452;  Davison  vs.  IlacTcett,  49  Wis.,  186. 

The  fraud,  as  alleged,  is  one  of  the  substantial  charges  made 
by  the  plaintiff  in  the  affidavit,  and  it  must  be  proved  by  a 
preponderance  of  the  evidence,  as  the  law  never  presumes 
fraud  without  evidence  tending  to  show  it.  And,  although 
you  may  believe,  from  the  evidence,  that  the  defendant  was 
then  about  to  assign  and  dispose  of  portions  of  his  property, 
still,  unless  the  plaintiff  has  proved,  by  a  preponderance  of 
the  evidence,  the  fraudulent  intent,  as  charged  in  the  affidavit, 
you  should  find  the  issues  for  the  defendant.  Lordxs.  Defen- 
dorf,  54  Wis.,  496. 

The  law  presumes  that  the  business  transactions  of  every  man 
are  done  in  good  faith  and  for  an  honest  purpose,  and  any  one 
who  alleges  that  such  acts  are  done  in  bad  faith,  or  for  a  dis- 
honest ])urpose,  takes  upon  himself  the  burden  of  showing, 
by  specific  acts  and  circumstances  tending  to  prove  fraud,  that 
such  acts  were  done  in  bad  faith.  And  in  this  case,  before 
you  would  be  warranted  in  finding  a  verdict  for  the  plaintiff, 
upon  the  issue  of  the  truth  of  the  afii  lavit,  you  must  believe, 
from  the  evidence,  that  the  defendant,  at  the  time  the  attach- 
ment writ  was  sued  out,  M'as  about  to  fraudulently  assign,  con- 
ceal, or  otherwise  dispose  of  his  property,  so  as  to  hinder  or 
delay  his  creditors. 


CHAPTER  VIII. 
DEBT  ON  BOND. 


Sec.     1.  Presumption  from  proof  of  signature. 

2.  Sureties  bound  by  action  of  principal. 

3.  Extent  of  agent's  authority. 

4.  What  proved  by  the  record. 

JMOTE. — Suit  on  replevin  bond  given  to  the  coroner — Property  replevied 
from  the  sheriff,  who  held  it  on  writ  of  attachment — Plea,  non  est  factum — 
Defence  by  the  sureties,  that  they  signed  the  bond  in  blank. 

§  1,  Pi*esximi)tion  from  Proof  of  Signature. — Tlie  court  in- 
structs tlie  jury,  that  if  they  believe,  from  the  evidence,  that 
the  signatures  to  the  replevin  bond  introduced  in  evidence  in 
this  case,  are  the  genuine  signatures  of  the  defendants,  then, 
if  there  is  no  proof  to  the  contrary,  the  presumption  of  law 
is,  that  the  said  bond  was  signed  and  sealed  by  the  defend- 
ants, after  the  body  of  the  bond  was  filled  up,  as  it  now 
appears  to  be;  and  that  it  was  regularly  and  properly  de- 
livered to  the  plain  Lift,  as  coroner,  in  its  present  condition, 
and  that  all  the  defendants  intended  it  should  be  so  delivered. 

If  you  believe,  from  the  evidence,  that  the  defendants 
signed  the  said  replevin  bond,  with  a  blank  space  left  in  it 
for  the  insertion  of  the  penalty  of  said  bond,  knowing  of  such 
blank  space,  and  then  delivered  the  same  so  signed  to  T.  E., 
or  to  his  agent,  with  the  intention  that  the  said  blank  should 
be  filled,  so  as  to  make  the  bond  an  apparently  perfect  instru- 
ment, and  that  the  same  should  then  be  delivered  to  the  said 
plaintiff  as  a  re]5levin  bond  in  said  case,  and  that  it  was  there- 
after presented  to  the  ]ilaintiff,  and  accepted  by  him  without 
any  notice,  or  knowledge  on  his  part,  that  the  same  was 
signed  with  the  amount  of  the  penalty  in  blank,  and  that 
the  plaintiff  then  had  no  knowledge  or  notice  in  respect  to 
eaid  bond,  beyond  what  now  appears  upon  the  face  of  it,  then 
you  are  instructed  that  said  bond  is  valid  and  binding  upon 
the  said  defendants,  and  to  the   same   extent    that   it   would 

(SO) 


DEBT    ON    IJOND.  81 

have  been  if  tlie  said  penalty  had  been  written  in,  as  the  same 
now  ap|)ears,  before  the  said  defendants  signed  the  same. 
S/m't/i  vs.  Crookei\  5  Mass.,  538  ;  State  vs.  Young  et  al.^  23 
Minn.,  "51  ;  Inhabitants  of  S.  Berwick  vs.  Huntress,  53  Me., 
89  ;  Pepper  vs.  State,  22  Ind.,  309. 

If  you  beh'eve,  from  the  evidence,  that  the  signatures  to 
the  bond  sued  on  in  this  case,  are  the  genuine  signatures  of 
the  defendants,  then,  before  any  question  of  law  can  arise  as 
to  any  alleged  signing  of  the  same  in  blank,  the  burden  of 
iiroof  is  ujion  the  defendants  to  prove,  by  a  preponderance  of 
evidence,  that  it  was  signed  by  them  while  there  were  blank 
spaces  in  said  bond  not  filled,  as  the  same  now  aj)[;ear;  and  in 
such  case,  unless  the  defendants  have  shown,  by  a  prejjonder- 
ance  of  evidence,  that  the  said  bond  was  signed  by  them  while 
there  were  such  blank  spaces  unfilled,  then,  up,on  that  ques- 
tion, you  should  find  in  favor  of  the  plaintiff. 

§  2.  Sureties  Bound  by  Action  of  their  Principal. — Where  the 
sureties  on  a  bond  entrust  it  to  their  principal  in  an  unfinished 
condition,  it  will  be  presumed  that  they  intend  to  vest  him 
with  authority  to  perfect  the  bond,  and  to  add  other  sureties 
sufficient  to  secure  its  approval;  and  such  authority  is  a  con- 
tinuing authority  until  some  step  is  taken  by  the  sureties 
towards  its  revocation.  Cawley,  etc.,  vs.  27ie  People,  95  111., 
249;  Pair  vs.   United  States,  IH  Wall.,  1. 

If  you  believe,  from  the  evidence,  that  the  defendants,  who 
are  sued  as  sureties  in  this  case,  signed  the  bond  upon  which 
this  suit  is  brought,  while  there  was  no  writing  in  the  body  of 
the  piaper  above  their  signatures,  but  a  mere  printed  form, 
with  blank  spaces  left  for  the  amount  of  the  penalty  and  other 
appropriate  matters  to  make  the  same  a  perfect  replevin  bond, 
they  then  knowing  of  such  blank  spaces;  and  that  after  they 
had  so  signed  the  same,  they  delivered  it  to  the  said  T.  E.,  or 
to  his  agent,  with  the  understanding  that  such  blank  spaces 
would  be  filled,  so  as  to  make  it  a  perfect  replevin  bond,  and 
that  it  then  would  be  delivered  to  the  plaintiff,  and  that  said 
blank  spaces  were  afterwards  filled  by  the  said  T.  E.,his  agent 
or  attorney,  as  they  now  ai>|)ear;  and  that  said  bond  was  after- 
wards presented  to  and  accepted  by  the  ])laintitf  as  a  replevin 
bond  in  said  case,  then  the  bond  is  valid  and  binding  on  tlie 
6 


82  DEBT    ON     BOND. 

defendants,  no  matter  wliat  Avas  the  nnderstandinf^  of  tlic 
parties  at  the  time  the  defendants  signed  the  same;  provided 
you  further  believe,  from  the  evidence,  that  the  plaintiff 
when  he  accepted  said  bond,  had  no  notice  or  knowledge  of 
such  understanding  or  arrangement,  or  that  the  said  bond  had 
been  filled  up  otherwise  than  in  accordance  therewith.  City 
of  Chicago \s,.  Gage,  95  111.,  593;  Smith  vs.  GrooJcer,^  Mass., 
583. 

If  you  believe,  from  the  evidence,  that  the  said  defendants, 
or  either  of  them,  signed  said  bond  while  there  was  a  blank, 
left  in  it  for  the  insertion  of  a  penalty,  and  then  delivered  the 
same  to  the  witness  A.  E.,  as  the  agent  of  the  said  T.  E., 
for  procuring  said  bond,  with  the  understanding  or  agreement 
on  his  part  that  the  said  blank  should  only  be  filled  with  a 
penalty  of  four  thousand  dollars,  and  the  said  A.  E.,  or  the 
said  T.  E.,  afterwards  filled  the  said  blank,  or  caused  it  to  be 
filled,  with  a  penalty  of  eight  thousand  dollars;  and  if  j^ou 
further  believe,  from  the  evidence,  that  the  said  bond  was 
afterwards  ])resented  to  and  accepted  by  the  ])laintiff  as  the 
replevin  bond  in  that  case,  without  an^'  notice  or  knowledge 
on  his  part  of  such  agreement  or  understanding,  and  without 
any  notice  or  knowledge  in  respect  thereto,  then  the  said  bond 
is  as  valid  and  binding  in  the  hands  of  the  plaintiff  as  though 
no  such  agreement  or  understanding  had  been  made  or  had. 
City  of  Chicago  vs.  Gage,  95  111.,  ^593;  Butler  v.  U.  S.,  21 
Wall,  272;  Wright  vs.  Harris,  31  la.,  272;  State  vs.  Pepper. 
31  Ind.,  70. 

The  court  insti'ucts  you,  that  although  they  may  believe, 
from  the  evidence,  that  the  name  of  the  defendant  ]\I.  was 
written  into  the  body  of  the  bond,  and  also  signed  to  the  same, 
after  it  had  been  signed  by  the  other  parties  thereto,  and  after 
it  had  been  shown  to  the  plaintiff,  these  facts  alone  would  not 
render  said  bond  invalid  as  to  such  other  parties;  provided 
you  further  believe,  from  the  evidence,  that  said  name  was 
written  in  and  signed  to  said  bond  before  the  same  was  accejited 
and  approved  by  the  ])laintiff,  as  the  replevin  bond  in  the  case 
mentioned  therein. 

You  are  instructed,  that  when  the  sureties  on  a  bond  sign 
it  in  blank,  and  deliver  it  in  that  condition  to  the  principal, 
knowing,  or  having  reason  to  know,  that  the  princii)al  intends 


DEBT    ON    EOND.  83 

to  fill  the  bliuilvS  and  deliver  the  same  to  the  obligee,  for  the 
purpose  of  obtaining  possession  of  property  on  ihe  faith  of  the 
bond,  and  the  principal  afterwards  fills  the  blanks,  delivers 
the  bond,  and  obtains  the  pro])crtj,  then  the  law  will  presume 
that  the  sureties  authorized  the  principal  to  fill  the  blanks, 
and  the  sureties  will  be  bound  by  the  acts  of  the  princijial  to 
the  same  extent  that  they  would  be  bound,  had  the  blanks  been 
filled  before  the  said  bond  was  signed  by  them;  provided,  the 
])erson  receiving  the  bond,  at  the  time  he  received  it,  had  no 
notice  or  knowled^re  that  the  blanks  in  the  bond  were  filled  uj) 
otherwise  than  in  accordance  with  the  instructions  or  under- 
standing of  the  sureties.  Butler  vs.  United  States,  21  Wall., 
272;  Bartlett  vs.  The  Board  of,  etc.,  59  111.,  364;  Peper  vs. 
State,  22  Ind.,  399;  City  of  Chicago  vs.  Gage,  95  111.,  593; 
McCormick  vs.  Bay  City,  23  Mich., 457;  Staters.  Young,  23 
Minn.,  551. 

Where  the  surety  in  a  bond  signs  it  and  delivers  it  to  the 
princijal,  with  the  understanding  that  the  principal  shall  pro- 
cure others  to  sign  the  bond,  before  delivering  it  to  the  obligee, 
and  that  after  procuring  such  signatures,  he  may  deliver  it, 
and  the  principal  delivers  the  bond  to  the  obligee  without  pro- 
curing the  signatures,  the  obligee,  in  absence  of  notice  to  the 
contrary,  has  a  right  to  presume  that  the  principal  was  author- 
ized to  deliver  the  bond  in  the  condition  in  which  it  was 
delivered.     Smith  vs.  The  Board  of  Sujpervis'jrs,  59  111.,  412. 

§  3.  Extent  of  Agent's  Authority. — That  a  special  agent's 
authority  is  that  which  is  given  by  the  terms  of  his  appoint- 
ment, or  that  with  which  he  is  apparently  clothed  by  the  char- 
acter in  which  he  is  held  out  to  the  world  by  the  principal. 
The  principal  is  equally  bound  by  the  authority  which  he 
actually  gives,  and  by  that  which,  by  his  own  acts,  he  api)ears 
to  give;  and  when  one  of  two  innocent  persons  must  suffer  by 
the  act  of  a  third  person,  he  who  has  enabled  such  person  to 
occasion  the  loss  must  bear  it. 

§  4.  Wliat  Proved  by  the  Record. — The  couit  instructs  the 
jury,  that  the  certified  copy  of  the  record  of  judgment  in  the 
replevin  case  of  J.  E.  vs.  T.  31.  R.  and  others,  is  sufficient 
evidence  that  the  said  J.  E.  did  not  prosecute  that  suit  with 


84  DEDT    ON    EOKD. 

effect,  and  that  a  return  of  llie  property  replevied  in  that  case 
was  awarded  by  the  coiii-t  to  the  defendants  in  that  suit. 

If  you  believe,  from  the  evidence,  and  under  the  instruction 
of  the  court,  that  the  bond  sued  on  in  this  case  was  a  valid 
and  bindino^  bond  upon  the  defendants,  and  that  the  property 
mentioned  and  described  in  the  declaration  in  the  replevin  suit 
of  J.  E.  vs.  T.  21.  B.  and  others^  was  not  returned  to  the 
defendants  in  that  suit,  or  to  any  of  them,  before  the  com- 
mencement of  this  suit,  then  you  should  find  the  issues  in  this 
suit  in  favor  of  the  plaintiff. 


CHAPTER  IX. 

DELlVEEr  OF  DEEDS. 


Sec.  1.  Deod  takes  effect  from  time  of  delivery. 

2.  What  constitutes  delivery. 

3.  No  particular  form  or  ceremony  necessary. 

4.  Official  bond — Delivery. 

§  1.  Deed  Takes  Effect  from  Time  of  Delivery. — The  court 
instructs  the  jury,  that  when  the  date  of  a  deed  and  the  de- 
livery are  different,  a  deed  of  real  estate  takes  effect  from  the 
date  of  its  delivery,  and  not  from  the  date  of  the  deed.  3 
Washburn  R  E.,  257. 

§  2.  What  Constitutes  Delivery.— To  constitute  a  delivery  of 
a  deed  the  person  who  makes  the  deed  must  not  only  part  with 
the  possession  of  it,  but  he  must  part  with  the  right  to  con- 
trol it,  and  with  the  right  to  recall  it.    3  Washburn  E.  E.,  251. 

And  if  you  believe,  from  the  evidence  in  this  case,  that  the 
defendant  executed  the  deed  in  question,  sent  it  to  the  record- 
er's office,  and  had  it  recorded,  and  then  received  it  back  again 
into  his  possession,  such  fact  alone  would  not  constitute  a  deliv- 
ery, and  no  title  would  pass  until  such  deed  was  delivered  to 
the  grantee  or  to  some  one  for  him.  Watso?i  v.  Ryan.,  3  Tonn., 
Ch.  40;  Boufes  vs.  Schultze,  2  Brad.  (111.  App.),  196. 

§  3.  No  Particular  Form  or  Ceremony  Necessary. — The  court 
instructs  the  jury,  that  no  particular  form  or  ceremony  is 
iijcessary  to  constitute  a  delivery  of  a  deed.  It  may  be  by 
acts  without  words,  or  by  words  without  acts,  or  by  both  ; 
anything  which  clearly  manifests  the  intention  of  the  gi-antor 
and  of  the  person  to  whom  it  is  delivered,  that  the  deed  shall 
then  become  operative  and  effectual,  that  the  grantor  shall 
lose  all  control  over  it,  and  that  by  it  the  grantee  is  to  become 
possessed  of  the  estate,  is  a  sufficient  deliveiy.  Gunnell  vs. 
Cockerill,  79  111.,  79;  Thatcher  vs.  St.  Andrews  Church,  37 
Mich.,  264. 

(85) 


56  DELIVERY    OF    DEEDS. 

A  deed  may  be  dclivore<:I  to  a  str.mger,  for  tlie  benefit  of 
the  grantee  named  in  the  deed,  who  may  be  ignorant  at  the 
time  that  the  deed  has  been  made,  and  if  the  grantee,  when 
informed  uf  the  fact,  assents  to  and  accepts  the  conveyance, 
the  deed  will  take  effect,  and  vest  the  title  in  the  grantee; 
unless  the  evidence  shows  that  the  rights  of  third  parties  have 
intervened  in  the  meantime.  McPherson  vs.  Featherdone  et 
at.,  37  Wis.,  632;   Concord  Banh  vs.  BeUis,  10  Cush.,  276. 

The  question  of  the  delivery  of  a  deed  is  one  of  act  and  in- 
tent both;  the  fact  that  a  deed  passes  from  the  hands  of  the 
grantor  to  the  grantee,  if  proved,  is  not  necessarily  a  delivery 
of  the  deed,  within  the  meaning  of  the  law.  To  constitute  a 
delivery,  it  must  be  delivered  by  the  grantor  and  accepted  by 
the  grantee,  or  by  some  one  authorized  by  him,  with  the  in- 
tention that  it  shall  then  be  an  operative  instrument,  accord- 
ing to  its  terms.  Steele  vs.  Miller,  40  la.,  402;  Stiles  vs. 
Frolst,  69  111.,  362. 

You  are  instructed,  that  the  delivery  of  a  deed  need  not 
necessarily  be  made  to  the  grantee  himself.  If  made  to  any 
person  for  the  grantee,  and  it  is  absolute  and  unconditional 
and  it  appears  to  be  for  the  grantee's  benefit,  his  assent  to  the 
delivery  will  be  presumed.      TJwmas  vs.  Candor,  60  111.,  244. 

§  4.  Official  Bond,  How  Delivered  and  Accepted. — Tlie  juiy  are 
instructed,  that  the  delivery  of  a  bond  {of  county  treasurer)  is 
not  complete  until  it  is  acce])ted  and  approved  by  the  board 
of  supervisors.  The  bond  can  only  be  accepted  or  rejected  by 
the  board,  as  an  organized  body;  the  power  cannot  be  dele- 
gated.    Cawletj  vs.  The  People,  95  111.,  249. 


CHAPTER  X. 

CARRIERS  OF  GOODS. 


Sec.     1.     Who  is  a  common  carrier  of  goods. 

2.  Liability  of  carrier  for  goods. 

3.  Tlie  law  of  the  State  where  the  goods  are  to  be  delivered,  governs. 

4.  Liability  for  all  losses  except  by  the  act  of  God,  etc. 

5.  What  is  meant  by  the  act  of  God. 

6.  What  is  not  an  act  of  God. 

7.  Inevitable  accident,  what. 

8.  Must  use  reasonable  care  to  avoid  injury  by  act  of  God,  etc. 

9.  Written  receipt  not  required. 

10.  Line  made  up  of  several  carriers. 

11.  First  carrier  liable,  when  (Illinois). 

12.  When  liability  of  carrier  commences. 

13.  Liability  continues  how  long. 

14.  If  goods  are  not  delivered  to  consignee,  they  must  be  stored. 

15.  Railroad  companies  are  not  bound  to  deliver  to  consignee  per- 

sonally. 

16.  Express  companies,  duty  and  liability. 

17.  Warehousemen,  care  required  of. 

18.  What  is  ordinary  diligence  and  care. 

19.  Must  carry  within  a  reasonable  time. 

20.  Shipping  perishable  property. 

21.  Receipt,  -when  2'>f>ma  facie  evidence  of  goods  in  good  order. 

22.  Bill  of  lading  implies  what — Contract. 

23.  Bill  of  lading,  not  conclusive  of  condition  of  goods. 

24.  Carrier  does  not  insure  condition  of  the  goods. 

25.  Can  restrict  their  common  law  liability  only  by  special  contract. 

26.  Legal  duties  imposed  by  law. 

27.  Exemption  clause  in  receipt  not  binding. 

28.  Shipper  will  be  presumed  to  agree  to  exemption  clause,  when. 

29.  Burden  on  the  carrier  to  show  loss  within  the  exemption. 

30.  Liability  not  limited  by  notice. 

31.  Must  exercise  reasonable  care  to  prevent  loss  within  exemption. 

32.  Shipper  bound  by  receipt,  when. 

33.  Shipper  not  bound  by  notice  printed  on  receipt. 

34.  Can  not  restrict  liability  arising  from  its  own  negligence. 

35.  Burden  of  proof. 

Note. — In  considering  the  following  instructions,  relating  to  common 
carriers,  it  must  be  borne  in  mind  that  their  liabilities  are  regulated  by 
statute  in  many  of  the  states,  and,  consequently,  they  may  not  be  the  same 
in  different  states.  It  is  more  especially  true  as  regards  their  right  to  limit 
their  common  law  liability. 

(87)      . 


8S  CAKKIEKS    OF    GOODS, 

§  1.  AVho  is  a  Common  Carrier  of  Goj*ds. — The  jury  arc 
instrncted,  that  one  wli",  for  liirc,  carries  passengers  and  their 
baggage,  or  baggage  al  )ne,  for  all  persons  choosing  to  employ 
him,  from,  to  and  between  railroad  depots  and  hotels,  and 
other  places  in  a  cit}^  is  a  common  carrier  of  goods.  Par- 
o/ielee  vs.  Lowitz^  74  111.,  116;  2  Am.  and  Eng.  Enc,  TSl. 

You  are  instructed,  that  express  companies  and  railway 
companies  are  common  carriers,  and  are  liable  as  such;  they 
are  insurers  for  the  safe  delivery  of  the  property  inti'usted  to 
them  for  transportation;  and  they  will  not  be  excused  for  its 
non-delivery,  except  they  are  prevented  from  delivei'ing  it  by 
an  act  of  God,  or  the  juibiic  enemy.  Cooley  on  Torts,  640; 
Edws.  on  Bail,  §  551;  Morrison  vs.  Davis,  20  Penn.  St.,  171; 
Railroad  Co.  vs.  Reeves^  10  Wall.,  176;  Sherman  vs.  Welles, 
2S  Barb.,  403;  Langworthy  vs.  N.  Y.  &  II.  Rij.  Co.,  2  E.  D. 
Smith,  195. 

§  2.  Liability  of  Common  Carriers  of  Goods. — The  jury  are 
instructed,  that  a  common  carrier  of  goods,  who  receives  and 
undertakes  to  carry  a  trunk,  for  one  not  a  passenger  with  such 
carrier,  is  responsible  for  the  delivery  of  the  trunk  and  its 
contents,  as  against  everything  but  the  act  of  God  or  the  pub- 
lic enemies,  notwithstanding  they  consist  of  articles  not  usually- 
carried  as  baggage,  unless  the  owner  has  been  guilty  of  some 
fraud  or  deception  in  relation  to  the  contents  of  gaid  trunk. 
Parmelee  vs.  Lowitz,  74  111.,  116. 

§  3.  The  Law  of  the  State  where  the  Goods  are  Delivered, 
Governs. — The  jury  are  instructed,  that  when  goods  are  deliv- 
ered to  a  common  carrier  in  this  state,  and  marked  to  a  par- 
ticular place  or  destination,  the  carrier  im])liedly  agrees  to 
carry  and  deliver  the  goods  at  that  place,  although  it  may  be 
beyond  its  own  lines  of  carrying,  unless  there  is  sonic  special 
contract  relieving  the  carrier  from  such  implied  obligation. 
Cooley  on  Torts,  640;  Milwaxihee,  etc.,  Rd.  vs.  Sinith,  74  111., 
197;  Bohannan  vs.  Hammond,  42  Cal.,  227;  McMillan  vs. 
Mich.,  etc.,  Rd.  Co.,  16  Mich.,  78. 

§   4.     Liable    for  all    Loss,  except  by  Act    of    God,  etc. — The 

court  instructs  the  jurj',  that  a  common  carrier  is  liable  for  all 


CARRIERS    OF   GOODS.  89 

losses  of  goods  wlilcli  do  not  arise  from  the  act  of  God,  or 
the  public  enemies;  while  a  warehouseman  is  only  liable  for 
such  losses  as  might  have  been  guarded  against  by  the  exev- 
cise,  on  his  part,  of  ordinary  care  and  diligence.  -6'^.  Z.,  A.  c& 
T.  H.  R.  R  Co.  vs.  Ilontgomery,  39  111.,  335;  Ked.  Car ,  §  24, 
25. 

You  are  instructed,  that  where  a  common  carrier  undei-- 
takes  to  transport  goods,  he  will  be  held  liable  for  their  loss 
or  destruction,  in  the  absence  of  a  special  contract  in  that 
behalf,  unless  the  loss  or  destruction  was  caused  by  the  act 
of  God,  or  the  public  enemy. 

§  5.  What  is  Meant  by  Act  of  (rotl. — By  the  term,  act  of  God, 
IS  meant  superhuman — something  beyond  the  power  of  man 
to  foresee  or  guard  against.  It  means  inevitable  accident — 
something  that  happens  without  the  intervention  of  man.  A 
loss  by  fire  is  not  a  loss  by  act  of  God.  Mer.  D'lsjp.  Go.  vs. 
Smith,  76  111.,  512;  Rod.  on  Car.,  Sec.  24. 

By  the  term,  act  of  God,  is  meant  those  events  and  accidents 
which  i)roc3ed  from  natural  causes,  and  cannot  be  anticipated 
and  guarded  against,  or  resisted;  such  as  unexampled  freshets, 
violent  storms,  lightning  and  frosts.  For  losses  occurring  by 
any  of  these  means,  a  common  carrier  is  not  liable;  provided, 
he  has  not  been  guilty  of  any  want  of  ordinary  and  reasonable 
care  to  guard  against  such  loss.  Michaels  vs.  ISf.  Y.  Cent., 
Ed.  Co.,  30  n!  Y.,  564;  Parlier  vs.  Flag,  26  Me.,  181; 
Moore  vs.  Mich.  Ed.,  3  Mich.,  23  ;  Cox  vs.  Petterson,  30  Ala., 
608  ;   Chevallier  vs.  Siraham,  2  Tex.,  115. 

§  6.  What  is  not  an  Act  of  God. — If  the  jury  believe,  from 
the  evidence,  that  the  injury  complained  of  could  have  been 
jirevented  by  *  *  ^,  or  by  any  other  means  known  and 
recognized  as  suitable  and  proper  for  the  purpose,  then  the 
injury  was  not  produced  by  an  act  of  God,  within  the  meaning 
of  the  law.     Bed.  on  Car.,  §  25. 

§  7.  Inevitable  Accident,  What. — If  the  jury  believe,  from 
the  evidence,  tluit  the  injury  complained  of  was  the  result  of 
inevitable  accident,  then  the  jury  should  find  for  the  defend- 
ant.    And  the  jury  are  instructed,  that  the  import  and  mean- 


'JO  CAKKIEKS     OF    GOODS. 

ing  of  the  words  "  iiiGvitable  accident"  is  this:  Where  one 
is  pnrsning  a  lawful  avocation  in  a  lawful  manner,  and  some- 
thing occurs  which  no  ordinary  skill  or  precaution  could  fore- 
see or  prevent,  and,  as  a  consequence,  tlie  accident  takes  place, 
this  is  called  inevitable  accident.     Red.  on  Car.,  etc.,  §  28. 

§  8.  Carrier  Must  Use  Reasonable  Care  to  Avoid  Iiyury  by  Act 
of  God. — The  jury  are  instructed,  that  a  common  carrier  is 
bound  to  use  reasonable  care  and  diligence  to  prevent  loss  or 
injury  to  goods  intrusted  to  it,  by  what  are  termed  acts  of 
God  ;  that  is,  such  care  and  diligence  as  ordinarily  prudent 
men  usually  exercise  towards  their  own  property,  under  like 
circumstances;  and  if  the  carrier  do  not  use  such  care  and 
diligence,  and  loss  or  damage  results  therefrom,  he  will  be 
liable  therefor. 

AV'hether,  in  this  case,  such  care  and  diligence  were  or  were 
not  used  by  the  defendant,  and  whether  any  loss  resulted 
therefrom,  are  questions  to  be  determined  by  the  jury,  in  view 
of  all  the  facts  and  circumstances  proved  on  the  trial.  Jll. 
Cent.  Rcl.  Co.  vs.  McClellan,  54  III,  58. 

§  9.  Written  Receipt  Not  Required. — The  jury  are  instructed, 
that  to  charge  a  common  carrier  with  the  receipt  of  goods,  it 
is  not  necessary  that  any  written  receipt  should  be  given; 
provided,  tlie  jury  believe  from  the  evidence,  that  the  prop- 
erty in  question  had  actually  come  into  the  possessioTi  of  the 
carrier,  to  be  transported  by  it,  and  that  it  was  afterwards 
lost  or  destroyed,  as  alleged  in  the  declai-ation.  /  C.  Rd. 
Co.  vs.  Smyser.,  38  111.,  354;  Ilickox  vs.  Namjatuck  Rd..,  31 
Conn.,  281;  Eod.  on  Car.,  etc.,  §  101. 

§  10.  Line  Made  up  of  Several  Carriers. — The  jury  are  in- 
structed, that  under  the  bill  of  lading  introduced  in  evidence  in 
this  case,  the  defendant  was  bound  to  transport  the  goods  safely 
to  the  end  of  its  route,  loss  from  the  act  of  God  or  the  public 
enemies  excepted,  and  then  deliver  them  to  (next  carrier,  etc.) 
and  in  such  case  the  company  would  not  be  relieved  from  its 
liability  as  a  common  carrier  by  simply  unloading  the  goods 
and  storing  them  in  a  warehouse  without  delivery  to  the  next 
carrier.     Whether   the  defendant  did  unload  and  store  the 


CARRIERS    OF    GOODS.  91 

p^oods  or  did,  etc.,  arc  questions  of  fact  to  be  determined  by 
the  jury,  from  the  evidence.  Irish  vs.  Milwaukee  IM.  Co., 
19  j\[inn.,  376;  yFfna  Ins.  Co.  vs.  Wheeler,  49  K  Y.,  616: 
Dunson  vs.  N'.  J^.,  etc.,  R.  Co.,  3  Laws,  265. 

The  law  is,  that  where  goods  are  delivered  to  a  carrier 
marked  to  a  particular  ])lace  beyond  or  not  upon  the  line  of 
such  carrier  and  the  goods  are  unaccompanied  by  any  other 
direction  for  their  transportation  and  delivery,  then  the  car- 
rier is  only  bound  to  transfer  and  deliver  tliem  according  to 
the  established  usage  of  the  business  in  which  the  carrier  is 
engaged,  whether  that  usage  were  known  to  that  other  party 
or  not.  Eed.  on  Car.,  §  185;  Yansajitmord  \?>.  St.  John,  6  Hill, 
157;  F.  &M.  Bank  vs.  Champlain  Trans.  Co.,  18  Yt,  140; 
Converse  vs.  JVbrwich  Trans.  Co.,  33  Conn.,  166;  Montgomery, 
etc.,  Rd.  Co.  vs.  Moore,  51  Ala.,  394;  Crawford  vs.  Southern 
Rd.  Co.,  51  Miss.,  222. 

That  when  parts  of  a  continuous  line  or  route  of  transpor- 
tation are  owned  by  different  carriers,  then,  unless  there  is 
some  contract  expressed  or  implied  to  the  contrary,  each 
carrier  is  only  liable  for  losses  and  injuries  occurring  on  his 
own  particular  portion  of  the  route.  Montgomery,  etc.,  Rd, 
Co.  vs.  Moore,  51  Ala.,  394;  Ortt  vs.  M.  &  St.  L.  R.  Co.,  31 
K  W.  Eep.,  519. 

§  11.  First  Ciriier  Liable,  When — (Illinois.) — The  court  in- 
structs the  jury,  that  tlie  rule  in  this  state  is,  that  when  goods 
are  delivered  to  a  common  carrier,  in  this  state,  marked  to  a 
place  not  upon  or  beyond  its  line  of  road,  with  no  other  direc- 
tion, and  without  any  express  contract  as  to  the  place  of  deliv- 
er}^, the  law  will  imply  an  undertaking,  on  the  ]iart  of  the 
carrier,  to  transport  tlie  goods  to  and  deliver  them  at  the  place 
to  which  they  are  marked.  Milwaukee,  etc.,  Rd.  Co.  vs. 
Smith,  74  111.,  197. 

You  are  further  instructed,  that  when  there  is  no  special 
contract  to  the  contrary,  and  goods  are  lost  by  any  one  carrier 
in  a  line  composed  of  several  carriers,  the  first  to  whom  the 
goods  were  delivered  will  be  liable  to  the  owner  for  the  goods 
lost  and  the  owner  is  not  required  to  sue  the  carrier  who  act- 
ually lost  the  goods,  provided  you  believe  from  tlie  evidence 
that  the  first  carrier  either  expressly  or  imi)liedly  agreed  to 


92  CAKEIERS    OF    GOODS. 

carry  the  goods  to  tlieir  destination  as  exjilained  in  tlio  instj'uc- 
tioss  upon  that  point.  C.  <&  N.  W.  lid.  Co.  vs.  N.  Line  P. 
Co.,  70  111.,  217. 

Ton  are  instructed,  as  a  matter  of  law,  that  where  several 
carriers  by  agreement  unite  to  complete  a  line  of  transj)orta- 
tion,  the  freight  to  be  divided  between  them  in  definite  pro- 
])ortions,  and  one  of  them  receives  goods  for  one  freight  to  be 
paid  for  the  whole  line  and  gives  a  through  bill  of  lading, 
then  each  carrier  is  the  agent  of  all  the  others,  and  each  is 
liable  for  any  damage  done  to  the  goods  on  whatever  part  of 
the  line  the  damage  is  received ;  and,  in  this  case,  you  are 
further  instructed  that  the  bill  of  lading  introduced  in  evi- 
dence recites  that  the  gouds  therein  mentioned  were  received 
by  the  defendant  corj  oratic  n  at  C.  to  be  carried  to  ]^.  Y. 
(freight  to  be  ]:aid,  etc.),  and  if  you  believe  from  the  evidence 
that  the  defendant  corporation  at  the  time  the  goods  is-ere 
received  had  an  arrangement  or  agreement  (with  the  other 
common  carriers)  by  which  they  were  all  to  unite  and  form  a 
completed  line  of  transportation  between  C.  and  X.  Y.,  each  of 
the  connecting  companies  to  have  an  agreed  or  definite  part 
of  the  freight  as  between  themsel.ves,  then  the  defendant 
would  be  liable  for  any  damage  or  loss  happening  to  the  goods 
on  any  part  of  the  entire  route.  Harp  vs.  The  Grand  Era., 
!•  Woods,  184. 

§  12.  When  the  Liability  of  the  Carrier  Commences. — The  law 
is,  that  as  soon  as  property  is  received  into  the  exclusive  pos- 
session of  the  common  carrier,  with  its  knowledge  and  con- 
sent, for  the  purpose  of  being  shipped,  then  the  liability  of  a 
common  carrier  commences,  no  matter  whether  it  is  received 
into  a  car,  dei)ot  or  warehouse.  Edwds,  on  Bail.,  §  528;  Coyle 
vs.  Western.,  etc.,  Corp.,  47  Barb.,  152;  Barren  vs.  JEldridye, 
100  Mass.,  455;  Michigan,  etc.,  Rd.  Co.  vs.  Schurtz,  7  Mich., 
515. 

You  are  instructed,  that  the  liabilit_y  of  a  common  carrier, 
for  the  safe  delivery  of  pro|  erty  which  has  come  into  its  pos- 
session, is  the  same,  whether  it  was  received  directly  from  the 
owner  or  from  another  carrier,  to  whom  it  had  been  origi- 
nally delivered.     Gulliver  vs.  Adams  Ex.  Co.,  38  111.,  503. 

§   13.     Liability    Continues,  How   Long. — The  court  instructs 


CARKIEKS    OF    GOODS.  93 

tlie  jury,  that  cominon  carriers  of  goods  must  deliver  the 
goods  shipped  by  them  to  the  owner  or  consignee  at  the  point 
of  destination,  or  store  the  goods,  subject  to  the  order  of  tlie 
consignee;  and  they  cannot  relieve  themselves  from  their 
liabilities  as  common  carriers  until  the  goods  are  delivered  to 
the  owner  or  consignee,  or  till  they  are  placed  in  a  warehouse 
for  safe  keeping;  and  there  nnist  be  some  open,  distinct  act  of 
deliver}'  to  a  warehouse  in  order  to  change  the  liability  from 
that  of  a  common  carrier  to  that  of  a  warehouseman,  and  the 
proof  of  this  change  rests  on  the  carrier.  The  liability  of  a 
common  carrier  will  continue  until  a  different  liability  attaches 
on  the  part  of  some  one.  C.  i&  R.  I.  Rd.  Co.  vs.  Warren., 
16  III,  502;  Francis  vs.  D.  &  S.  Citij  Ed.  Co.,  25  la.,  60. 

Note. — The  clutj' of  railroad  companies  and  other  common  carriers,  in 
respect  to  notifying:  the  consignee  of  tlie  arrival  of  the  goods,  or  of  deliver- 
ing to  them  personally,  will  be  governed,  to  some  extent,  by  custom  and 
usage,  and  by  the  former  course  of  dealing  between  the  parties;  and,  per- 
haps, to  some  extent,  by  the  circumstances  of  the  case.  Redfield  on  Carriers, 
sees.  104-106;  McMillen  vs.  Mich.  Southern  Rd.  Co.,  16  Mich.,  79;  Buck- 
ley vs.  G.  W.  Rd.  Co.,  18  Mich.,  121. 

Although  you  may  believe  from  the  evidence  that  the  goods 
in  question  were  safely  carried  by  the  defendant  to  S.  and 
there  unloaded  and  safely  deposited  in  a  reasonably  safe  ware- 
house and  were  afterwards  burned  (or  stolen)  without  any 
negligence  on  the  part  of  defendant,  still  the  defendant  would 
be  liable  as  a  common  carrier  for  the  loss  of  the  goods  as 
explained  in  the  instructions  upon  that  point,  provided  you 
further  believe  from  the  evidence  that  the  goods  were  burned 
(or  stolen)  before  the  plaintiff  had  had  notice  of  their  arrival 
and  before  he  could,  by  the  use  of  ordinary  and  reasonable 
diligence,  have  learned  of  the  arrival  of  the  goods  and  have 
had  a  reasonable  time  in  which  to  remove  them.  Wood  vs. 
Crocker,  18  Wis.,  315;  Ala.  c&  Teiin.  Rd.  Co.  vs.  Kidd,  35 
Ala.,  209;  McCartrieij  vs.  N.  Y.  &  Erie  Rd.  Co.,  30  Penn  St.^ 
247;  3£oses  vs.  Boston  &  Me.  Rd.  Co.,  32  N.  H.,  523;  Rome 
Rd.  Co.  vs.  Sullimn,  14  Ga.,  277;  Eed.  on  Car.,  etc.,  §  9,  10. 
[f  you  believe  from  the  evidence  that  the  goods  in  question 
were  carried  by  the  defendant  to  C,  and  then  unloaded  from 
the  cars  and  the  ]^laintiff  notified  of  their  arrival,  then  it 
would   be  the  duty  of   the  plaintiff   to   pay  the   freight   and 


9i  CAKEIEES    OF    GOODS. 

charges  and  remove  tlie  goods  within  a  reasonable  time  there- 
after; and  if  jou  further  believe  from  the  evidence  tliat  the 
plaintiff  did  not  within  a  reasonable  time  after  such  notice 
offer  to  pay  said  freiglit  and  charges  and  take  away  the  goods, 
and  that  thegoods  were  afterwards  burned  (or  stolen),  then  the 
defendant  would  not  be  responsible  for  the  loss  of  the  goods — 
provided  you  further  believe  from  the  evidence  that  the  de- 
fendant was  at  the  time  exercising  such  care  for  the  safety  of 
the  goods  as  an  ordinarily  prudent  person  would  usually  take 
of  his  own  property  under  the  same  circumstances.  Red.  on 
Car.,  etc.,  §  109,110. 

§  14.  K  Goods  are  not  Delivered  to  Consignee,  They  Must  be 
Stored. — If  the  jury  believe,  from  the  evidence,  that  the  goods 
of  the  plaintiff  were  carried  by  the  defendant  to  tlieir  destina- 
tion, and  not  then  and  there  delivered  to  the  plaintiff,  or  to 
some  one  for  him,  by  reason  of  there  being  no  one  there  to 
receive  them,  or  for  any  other  cause  not  the  fault  of  the  plaint- 
iff, then  it  was  the  duty  of  the  defendant  to  store  the  goods  in 
an  ordinarily  safe  warehouse. 

You  are  instructed,  that  it  is  the  dut}'  of  a  carrier  of  goods, 
when  the  goods  have  arrived  at  the  place  of  destination,  to 
unload  and  place  them  in  a  convenient  place  for  delivery,  and 
if  the  consignee  is  there  ready  to  receive  them,  to  deliver  them 
to  him ;  but  if  he  is  not  there,  the  carrier  must  store  them  in 
a  reasonably  safe  warehouse,  or  place  them  nnder  the  charge 
of  competent  and  careful  servants, ready  to  be  delivered  when 
called  for  by  those  entitled  to  receive  them;  and  if  the  carrier 
fails  to  do  this,  and  the  goods  are  thereby  lost  or  injured,  the 
carrier  will  be  liable  to  the  owner  for  such  loss  or  injury: 
Caftn  vs.  Mich.  Cent.  Ed.  Co.,  71  111.,  96.  Red.  on  Car.,  etc., 
§  108;  Mechanids  Bank  vs.  Trans.  Co.,  23  Yt,  211;  I^ew 
Alhany  &  S.  ltd.  Co.  vs.  Campbell,  12  Ind.,  55. 

If  you  believe,  from  the  evidence,  that  the  defendant 
received  the  goods  of  the  plaiutirf,  to  be  transported  by  it,  as 
charged  in  the  declaration,  then  the  responsibility  of  the 
defendant  as  a  common  carrier  lasted  until  the  plaintiff's  goods 
reached  their  destination  and  were  delivered  to  the  plaintiff, 
or  his  authorized  agent,  or  were,  by  the  defendant,  stored  in 
an  ordinarily  safe  warehouse  of  its  own  or  some  one  else. 


CAKEIKRS    OF   GOODS.  95 

§  15.  Railroad  Companies  are  not  Bound  to  Deliver  to  Consignee 
Personally. — The  court  instructs  the  jury,  that  railroad  com- 
panies are  not  bound  to  deliver  goods  carried  by  them  to  the 
consignee  personally.  When  tlie  goods  have  i-eached  their 
destination,  and  the  consignee  is  not  present  to  receive  them, 
then  the  carrier  may  store  them  in  a  suitable  warehouse,  and 
when  the  goods  are  thus  stored,  the  duty  and  liability  of  the 
company  as  a  common  carrier  is  terminated,  and  that  of  the 
warehouseman  begins.  Cooley  on  Torts,  642;  Chicago  da  A. 
Rd.Co.  vs.  Scott,  42  111.,  121;  Eed.  on  Car.,  §  106. 

§  16.  Duty  and  Liability  of  Express  Companies. — That  an  ex- 
press company,  as  a  common  carrier,  is  not  only  required  to 
trans]!ort  the  goods  to  the  place  of  destination,  but  the  further 
duty  is  enjoined  upon  it  to  deliver  the  goods  to  the  consignee, 
at  his  residence  or  place  of  bus'ness,  if,  with  the  exercise  of 
reasonable  care  and  efforts  in  that  behalf,  such  residence  or 
])lace  of  business  can  be  found. 

The  court  further  instructs  you  that  where  goods  trans- 
ported by  an  express  company  are  by  it  tendered  to  the  con- 
signee, and  he  fails  to  receive  and  pay  for  them,  it  is  the  duty 
of  the  express  company  to  so  notify  the  consignor,  and  when 
this  is  done,  the  comjjany  is  relieved  of  its  responsibility  as  a 
common  carrier,  and  holds  the  goods  as  a  warehouseman, 
subject  to  the  order  of  the  consignor,  and  not  before. 

The  court  further  instructs  you,  as  a  matter  of  law,  that  an 
express  company  can  discharge  itself  of  responsibility,  as  a 
common  carrier,  in  no  other  way  than  by  an  actual  delivery  of 
the  goods  to  the  proper  person,  at  his  residence  or  place  of 
business,  when,  with  reasonable  efforts,*these  can  be  found, 
except  by  proving  that  the  company  has  been  excused  from 
so  doing,  or  prevented  by  an  act  of  God,  or  the  public  enemy. 
Am..  Merchants  TJ.  Ex.  Co.  vs.  AYolf,  79  111.,  430.  Eed.  Car., 
etc.,  §  61 ;  StadhecJter  vs.  Conibs,  9  Eich  (S.  C),  193. 

It  is  the  duty  of  an  express  comi^any,  upon  receiving  a 
package  of  money  to  be  forwarded,  to  safely  carry  and  deliver 
it  to  the  consignee,  and  the  only  way  it  can  relieve  itself  from 
this  responsibility  is  by  showing  performance,  or  its  ])re- 
vention  by  the  act  of  God,  or  a  public  enemy.  And  in  this 
case,  if  you  believe,  from  the  evidence,  that  the  defendant,  at 


96  CAKEIEES     OF    GOODS. 

the  time  in  question,  was  a  common  carrier,  and  as  such  ' 
received  the  money  in  question,  to  be  carried  and  delivered  to 
the  plaintiff  at  K.,  and  that  tlie  defendant  delivered  said 
money  to  one  E.,  on  a  writing  ]Hir porting  to  be  an  order  of 
the  plaintiff,  and  that  said  order  was  a  forgery,  then  such 
delivery  will  not  excuse  the  defendant,  and  the  plaintiff  is 
entitled  to  i-ecover  the  amount  of  said  money.  Am.  M.  U. 
Ex.  Co.  vs.  Milk,  73  111.,  224. 

§  17.  Care  required  of  Warehousemen. — The  jury  are  further 
instructed,  that  when  the  carrier  assumes  the  duty  of  ware- 
houseman, he  is  bound  to  use  ordinary  care  and  diligence  in  the 
preservation  of  the  property.  The  building  in  which  the 
goods  are  stored  must  be  a  reasonably  safe  one,  and  under  the 
charge  of  careful  and  competent  servants. 

And  if  you  further  believe,  from  the  evidence,  that  after  the 
goods  arrived  at  their  destination,  and  after  a  reasonable  time 
for  the  consignee  to  call  for  and  receive  the  same,  the  defend- 
ant retained  possession  of  them,  such  possession  would  be  in 
the  capacity  of  a  warehousckeeper  of  goods  for  hire,  and  as 
such  warehouseman,  the  defendant  was  bound  to  use  all 
ordinary  diligence  and  caution  in  the  care  of  the  same.  Edwd. 
on  Bail.,  §  336;  (7A/c.,  R.  I.  i&  P.  Rd.  Co.  vs.  Fairclough,  52 
111.,  106. 

That  the  ordinary  diligence  or  care  which  a  warehouseman 
is  bound  to  use,  is  that  degree  of  care  and  attention  which, 
under  the  same  circumstances,  a  man  of  ordinary  prudence 
and  discretion  would  ordinarily  use  in  reference  to  the  par- 
ticular goods,  if  they  were  his  own  property.  Mote  vs.  C.  <& 
N.  W.  Rd.  Co.,  27  la.,  22;  Francis  vs.  D.  &  8.  C.  Rd.  Co., 
25  la.,  60. 

§  18.  What  is  Ordinary  Diligence  and  Care. — That  ordinary 
diligence  is  such  diligence  as  men  of  common  prudence  usually 
exercise  about  their  own  affairs;  and  ordinary  care  is  such 
care  as  an  ordinarily  prudent  person  usually  takes  of  his  own 
goods.     C.  &  A.  Rd.  Co.  vs.  Scott,  42  111.,  132. 

A  connnon  carrier  of  goods  is  not  an  insurer  as  to  the  time 
at  which  the  goods  shall  arrive  at  their  destination  but  he  is 
bound  t'j  carry  them  to  their  destination  in  a  reasonable  time. 


CARRIERS    OF   GOODS.  97 

after  they  are  received.  McLaren  vs.  Detroit  &  C.  12.  Co., 
23  Wis.,  13S;  Parsons  vs.  Hardy,  14  Wend.,  215. 

If  delay  is  occasioned  by  an  inevitable  accident  or  an  act  of 
God,  and  loss  or  damage  results  from  such  delay  without  any 
fault  on  the  part  of  the  carrier,  such  loss  or  damage  is  not 
chargeable  to  the  carrier.  Naslwille  R.  Go.  vs.  David,  G 
Heisk.  (Tenn.),  261;  R.  R.  Co.  vs.  Reeves,lO  Wall.  (U.  S.),  17G; 
Hoadley  vs.  N.  T.  Co.,  115  Mass.,  301:. 

If  a  carrier  is  transporting  property  of  a  perishable  nature 
and  a  delay  is  occasioned  by  an  inevitable  accident  or  an  act  of 
God,  he  must  use  all  reasonable  efforts  to  avoid  all  unnoces- 
sary  damage  to  the  property  either  by  forMMrding  it  to  its 
destination  by  other  means  of  conveyance,  or  in  some  other 
way.  If  he  is  unable  to  forward  it  to  its  destination  by  the 
exercise  of  reasonable  efforts  in  that  behalf  in  time  to  avoid  a 
total  loss,  he  is  justified  in  selling  the  property  for  the  best 
price  it  will  bring,  exercising  reasonable  discretion  in  that 
regard;  but,  whether,  in  this  case,  there  was  any  unusual  delay 
in  transporting  the  goods  in  question,  and  whether  such  delay, 
if  any,  was  caused  by  inevitable  accident,  and  whether  the 
defendant  did  everything  that  could  reasonably  be  done  to 
avoid  damage  to  the  goods,  are  all  questions  of  fact  to  be 
determined  by  the  jury,  from  the  evidence  in  the  case. 
Express  Co.  vs.  Smith,  33  Ohio.  St.,  511. 

§  19.  Must  Carry  within  a  Reasonable  Time. — The  jury  are 
instructed,  that  when  a  railroad  compain^  contracts  to  forward 
and  deliver  goods  at  any  particular  ]ioint  it  is  bound  to  for- 
ward and  deliver  the  goods  at  that  point  within  a  reasonable 
time,  and  it  will  not  be  released  from  its  liabilit}'  by  delivery 
to  another  connecting  road;  but  it  will  still  be  liable  for  any 
'iitveasonable  delay,  although  the  same  occurs  on  account  of 
ilio  crowded  condition  of  the  connecting  road,  or  for  any  other 
cause  attributable  to  such  road.  Penn.  Rd.  Co.  vs.  Benz,  68 
Penn.  St.,  272;  King  vs.  Macon,  etc.,  Rd.  Co.,  60  Barb.,  169; 
Toledo,  TF.  &  W.  R.  R.  Co.  vs.  Lockhart,  71  111.,  627. 

§  20.  Shipping  Perishable  Property. — If  the  jury  believe, 
from  the  evidence,  that  the  fruit  in  question  was  injured  and 
damaged  by  being  frozen  after  it  was  received  by  the  defend- 

'  7 


9S  CAEKIEKS     OF    GOODS. 

ant,  and  while  in  transit  to  C,  and  that  carriers  in  the  same 
line  of  business  were  at  that  time  accustomed  to  use  refriger- 
ator cars  for  the  purpose  of  protecting  fruit  from  the  effects 
of  the  weather,  and  that  such  injury  or  damage  could  have 
been  prevented  by  the  use  of  reasonable  and  ordinary  care  on 
the  part  of  the  defendant,  either  by  shipping  the  same  in  re- 
frigerator cars  or  by  another  means  generally  known  and  rec- 
ognized among  railroad  men  as  suitable  and  proper  for  the 
purpose  of  protecting  fruit  from  the  effects  of  the  weather, 
then  the  damage  was  not  produced  by  an  act  of  God,  within 
the  meaning  of  the  law,  and  the  defendant  would  be  liable 
therefor. 

Tou  are  instructed,  as  a  matter  of  law,  that  where  a  com- 
mon carrier  accepts  fruits  liable  to  be  affected  by  the  weather 
for  transportation  over  long  distances,  in  the  winter  season, 
the  character  of  his  employment,  independently  of  any  special 
contract  to  that  effect,  clearly  implies  that  he  will  ship  them 
in  such  vehicles  or  cars  as  are  reasonably  suitable  for  the  pur- 
pose, and  exercise  such  care  and  diligence  as  may  be  reason- 
ably necessar}'-  for  their  safe  passage  to  their  destination. 
Whether,  in  this  case,  such  care  and  diligence  were  or  were 
not  used  by  the  defendant,  and  whether  any  loss  resulted 
therefrom,  are  questions  to  be  determined  by  you  in  view  of 
all  the  evidence  in  the  case.  Merehaiiti  Dispatch  Trans.  Co. 
vs.  Comforth,  3  Col,  280. 

If  you  believe,  from  the  evidence,  that  the  defendant,  by 
the  exercise  of  reasonable  diligence  in  the  loading  and  ship- 
ment of  the  (oranges)  mentioned  in  the  bill  of  lading,  could 
have  transmitted  the  same  to  their  destination  in  a  sound  and 
undamaged  condition,  and  the  jury  further  believe,  from  the 
evidence,  that  said  (oranges),  or  any  part  thereof,  arrived  at 
their  destination  in  a  damaged  and  unsound  condition  by  rea- 
son of  the  want  of  reasonable  care  and  diligence  on  the  part 
of  the  defendant  and  without  any  fault  or  neglect  on  the  part 
of  the  plaintiff  then  you  should  find  the  issues  in  favor  of  the 
plaintiff. 

The  court  instructs  you  as  a  matter  of  law  that  where  goods 
are  damaged  while  in  the  hands  of  a  common  carrier  through 
the  negligence  of  the  carrier,  if  they  are  only  damaged  and  are 
not  rendered  wholly  worthless  the  owmer  is  bound  to  receive 


CAERIEKS     OF    GOODS,  01) 

them  and  ho  cannot  ahandon  them  and  ])rocecd  against  the 
carrier  as  for  total  loss,  but  in  such  case  the  owner  has  a  right 
of  action  against  the  carrier  for  the  depreciation  in  the  value 
of  the  goods  occasioned  by  such  damage  and  negligence  pro- 
vided no  fault  or  negligence  on  the  part  of  the  plaintiff  has 
contributed  to  such  loss  or  damage.  /S/iaiv  vs.  /S.  C.  Rij.  Co., 
5  Rich.,  462. 

The  court  instructs  yon  that  tlie  clause  embodied  in  the  bill 
of  lading  offered  in  evidence  providing  that  the  defendant 
should  not  be  liable  for  any  loss  or  injury  to  said  fruit,  which 
might  occur  by  reason  of  the  weather,  would  not  relieve  tlie 
defendant  from  any  loss  or  damage  from  its  negligence  or  want 
of  ordinary  care  in  providing  suitable  cars  for  the  transporta- 
tion of  such  fruit.  Whether  the  defendant  was  guilty  of  neg- 
ligence or  want  of  ordinary  care  in  not  furnishing  suitable 
cars  for  the  transportation  of  such  fruit,  is  a  question  to  be 
determined  by  you  from  a  consideration  of  all  the  evidence  in 
the  case. 

§  21.  Receipt  Prima  Facie  Evidence  of  Goods  in  Good  Order. — 
That  the  receipt  introduced  in  evidence  is  prima  facie  proof 
that  the  goods  therein  mentioned  were  in  good  order  at  the 
time  they  were  received  by  the  defendant,  and  so  far  as  re- 
gards that  question,  the  burden  of  proof  is  on  the  defendant 
to  show,  by  a  preponderance  of  evidence,  that  the  goods  were 
in  a  damaged  condition  at  the  time  they  were  received  by  the 
defencmnt,  or  else  that  the  injury  occurred  from  a  cause  for 
w'hich  the  defendant  is  not  liable,  as  explained  in  these  in- 
structions; provided,  the  jury  believe,  from  the  evidence,  that 
the  goods  were  damaged  when  delivered  to  the  plaintiff,  as 
charged  in  the  declaration.  Montgomery,  etc.,  lid.  Co.  vs. 
Moore,  51  Ala.,  394. 

.  The  bill  of  lading,  introduced  in  evidence  in  this  case,  is 
prima  facie  evidence  that  the  box  of  goods  was  received  by 
the  defendants,  and  was  at  that  time  in  good  order;  and  if  the 
defendants  claim  that  it  was  not  so  in  good  order,  it  is  incum- 
bent on  them  to  show  this,  and  that  they  were  deceived  or 
defrauded  when  the  bill  of  lading  was  signed;  and  unless  you 
believe,  from  the  evidence,  that  the  defendants  were  so  deceived 
or  defrauded,  you  will  find  a  verdict  for  the  plaintiff  for  the 


100  CARKIEKS    OF    GOODS. 

amount  of  his  loss,  as  sliown  by  tlie  evidence;  provided  tliat 
you  find,  from  the  evidence,  tliat  the  plaiutiff  demanded  said 
goods  before  the  commencement  of  this  suit,  and  that  the 
goods  were  not  deliveicd  on  demand,  as  charged  in  the  plaint- 
iflf's  declaration;  and  further,  that  said  loss  did  not  occur  from 
{causes  excepted  in  the  receipt).  G.  W.  JR.  R.  Co.  vs.  McDon- 
ald, 18  111.,  172;  Ked  on  Car,  etc.,  §  259,  21:7. 

Tou  are  instructed  that  the  bill  of  lading  in  this  case  shows, 
prima  facie,  that  the  goods  in  question  were  in  good  order 
and  condition  when  they  were  received  by  the  railroad  com- 
])any;  and  if  you  believe,  from  the  evidence,  that  the  goods 
were  not  in  good  order  and  condition — natural  wear  and  tear 
and  ordinary  deterioration  excepted — when  delivered  to  the 
plaintiff,  then  to  avoid  liability  for  injury  to  the  goods,  de- 
fendants must  show,  by  a  preponderance  of  evidence,  that  the 
goods  were  not  as  described  in  the  bill  of  lading  at  the  time 
they  were  delivered,  or  that  they  were  injured  by  some  fault 
or  negligence  of  the. plaintiff,  or  by  {some  cause  within  the 
exemption  clause  of  the  receipt). 

§  22.  Bill  of  Lading  Implies  What — Contract. — The  jury  are 
instructed  that  the  bill  of  lading,  offered  in  evidence,  recites 
that  the  goods  were  in  good  order  and  condition  when  received 
by  the  defendant,  and  by  s;iid  bill  of  lading  the  defendant  con- 
tracted to  deliver  said  goods  in  like  good  order  and  condition 
at  P.;  and  if  the  jury  believe,  from  the  evidence,  that  the 
goods  were  not  delivered  in  as  good  order  and  condition  as 
when  received  by  defendant — oidinary  wear  and  tear  and  or- 
dinary deterioration  excepted— and  that  the  plaintiff  was  in- 
jured and  has  sustained  damage  thereby,  then  the  ])laintiff  is 
entitled  to  recover,  unless  the  jury  believe,  from  the  evidence, 
that  the  damage  or  injury  to  such  goods  resulted  from  some 
fault  or  negligence  of  the  plaintiff,  or  from,  etc.  Bissell  vs. 
Price,  16  111.,  408;  Wallace  K.  vs.  Long,  10  111.  App.,  504; 
/.  C.  R.  R.  Co.  vs.  Cohh,  72  111.,  148;  Warden  vs.  Green,  6 
Watts,  424. 

§  23.     Bill  of  Lading  Not  Conclusive  of  Condition  of  the  Goods. — 

The  court  instructs  the  jury,  that  a  bill  of  lading,  while^'ma^ 
facie  true,  may  be  explained  by  other  evidence;  and  if  the 


CAKKIEKS     OF   GOODS.  101 

jury  believe,  from  tlie  evidence  in  this  ease,  that  the  goods  in 
question  were  wet  or  otlierwise  injured,  ur  in  bad  condition, 
before  they  came  into  defendant's  hands,  and  that  they  were, 
externall}^,  in  good  condition  when  defendant  received  them, 
and  tliat  tlie  jierson  receiving  the  goods  could  not,  without 
o|)ening  them,  have  ascertained  their  actual  condition,  then, 
the  fact  of  receipting  for  them  as  in  good  order  and  condition 
will  not  preclude  the  defendant  from  showing  their  true  con- 
dition in  this  suit.  Blssell  vs.  Price^  16  111.,  408;  Carson  vs. 
flarris,  4  G.  Gr.,  51();  Porter  vs.  C.  db  N.  W.  Pul.  Co.,  20 
Lu,  73;  Ellis  vs.  Williard,  5  Selden,  529;  Meyer  vs.  Pec7i\ 
28  K  Y.,  590. 

§  24.     Carrier  Does  Not  Insure    Condition  of  the  Goods. — The 

court  instructs  the  jury,  that  while  common  carriers  are  in- 
surers for  the  delivery  of  the  goods  received  by  them,  they 
are  not  insurers  that  the  goods  will  reach  their  destination  in 
the  same  condition  in  which  they  were  shipped.  They  are 
not  liable  for  loss  arising  from  ordinary  wear  and  tear  or  ordi- 
nary deterioration  in  quantity  or  quality  during  the  journey, 
nor  for  loss  arising  from  the  fault  or  negligence  of  the  shipper. 

§  25.  Carriers  can  only  Restrict  their  Common  Law  Liabilities 
by  Special  Contract. — The  law  is,  that  a  common  carrier  is  boimd 
to  receive  and  carry  goods  offered  to  him  for  transportation, 
if  in  proper  condition  for  shipping,  subject  to  all  the  inci- 
dents of  his  business  as  a  common  carrier,  and  there  can  be  no 
presumption  that  the  shi]")per  intended  to  abandon  any  of  his 
legal  rights;  and  the  burden  of  proving  a  conti-act,  by  which 
his  common  law  liability,  as  explained  in  these  instructions, 
has  been  restricted,  is  upon  the  carrier.  Western  T.  Co.  vs. 
Reiohall,  24  111.,  460;  McCoy  vs.  The  K.  &  D.  M.  R.  Co., 
44  la.,  424;  N.  Y.  C  R.  R.  Co.  vs.  Lochwood,  17  Wall.  (U.  S.), 
357. 

§  26.  Legal  Duty  of  Carriers  Imposed  by  Law. — That  the  right 
conferred  upon  railroad  corporations,  in  their  charters,  to  car- 
ry passengers  and  property  for  compensation,  is  coupled  with 
the  duty  that  they  shall  receive  and  carry  passengers  and 
freight  on  their  roads  as  tliey  may  be  offered,  under  the  liabili- 


102  CAKitlEKS    OF    GOODS. 

ties  and  responsibilities  which  the  law  imposes  upon  common 
carriers,  as  explained  in  their  instructions;  and  these  liabili- 
ties cannot  be  avoided  except  by  a  special  agreement  to  that 
effect.  P.  c&  B.  I.  Ry.  Co.  vs.  Coal  Valley,  etc.,  Co.,  68  111., 
489;  Wallace  vs.  Matthews,  39  Ga.,  617;  Thayer  vs.  St.  Louis, 
etc.,  Rd.  Co.,  22  Ind.,  26. 

§  27.  Exemption  Clause  in  Receipt  Not  Binding. — That  where 
goods  are  received  by  a  common  carrier,  and  a  receipt  or  a 
bill  of  lading  is  given,  containing  a  clause  exempting  the  car- 
rier from  certain  liabilities  therein  mentioned,  such  receipt  is 
not  binding  upon  the  shipper,  unless  it  appears,  by  a  prepon- 
derance of  the  evidence,  that  he  knew  of  and  assented  to  the 
exemption;  and  whether  he  did  so  assent  is  a  question  of  fact 
for  the  jury.  Field  vs.  G.  &  R.  I.  Rd.  Co.,  71  111.,  458; 
Red.  Car,  etc.,  §  114;  N.  J.  Steam  N.  Co.  vs.  Merchants 
Bank,  6  How.  (U.  S.),  344;  Sager  vs.  Ry.  Co.,  31  Me.,  228; 
Yerner  vs.  Sweitzer,  32  Penn  St.,  208. 

Exemption  Clause  Binding  if  Agreed  to. — The  court  instructs 
the  jur}^,  that  when  a  common  carrier,  receiving  goods  for 
transportation,  gives  a  receipt  for  the  goods,  containing  pro- 
visions limiting  the  common  law  liability  of  the  carrier,  other 
than  those  arising  from  its  own  fault  or  negligence,  and  the 
shipper  accepts  the  receij^t  with  a  full  knowledge  of  its  terms, 
and  intends  to  assent  to  sucli  restrictions,  it  becomes  his  con- 
tract as  fully  as  if  he  had  signed  it.  But  the  simple  accept- 
ance of  such  a  receipt  does  not  conclusively  bind  the  shippei-; 
in  order  to  bind  him,  it  must  appear,  from  tlie  evidence,  that 
he  had  knowledge  or  notice  of  the  terms  of  the  receipt  and 
assented  to  them.  Adams  Ex.  vs.  Ilaynes  Co.,  42  111.,  89; 
Gaines  vs.  U.  T.  &  Q.  Co.,  28  Ohio  St.,  418;  Grace  vs. 
Adcmis,  100  Mass.,  50.5;  Levering  vs.  U.  Tras.  Co.,  42  Mo., 
94;  Rd.  Co.  vs.  Mfg.  Co.  16  Wal.,  329. 

§  28.  Shipper  will  be  Presumed  to  Agree  to  Exemption  Clause, 
AVlien. — The  court  instructs  the  jury,  that  when  a  ship])er  de- 
livers goods  to  a  common  carrier  to  be  trans])orted  by  the  car- 
rier, and  takes  a  receipt  for  the  goods  in  the  nature  of  a  bill 
of  lading,  specifying  in  the  body  of  it,  so  as  to  form  a  part  of 


CAEKIEKS    OF    GOODS.  103 

tlie  receipt,  tbe  terms  iipou  wliicli  tliey  arc  to  be  carried  and 
delivered,  the  sliipper  will  be  bound  by  the  terms  of  the  re- 
ceipt, unless  it  ap])cars,  by  the  evidence,  that  some  fraud  or 
imposition  was  practiced  upon  the  shij)per  to  induce  him  to 
take  such  a  reccijit.  Edwd.  on  Bail.,  §  561;  Long  vs.  JSf.  Y. 
Cent.  Ed.  Co.,  50  K  Y.,  76;  Grace  vs.  Ada?ns,  100  Mass.,  505. 
You  are  further  instructed,  that  the  receipt  introduced  in 
evidence  in  this  case  contains  a  stipulation  exempting  the  de- 
fendant from  all  loss  or  injury  to  the  goods  arising  from,  etc.; 
and  if  you  believe,  from  the  evidence,  that  the  plaintiff  ac- 
cepted the  receipt  without  objection,  then  he  is  bound  by  its 
terms.  The  law  presumes  that  he  read  it,  or  was  otherwise 
informed  of  its  contents,  and  if  he  accepted  it  without  objec- 
tion, that  he  assented  to  the  conditions  prescribed  in  it — unless 
you  further  believe,  from  the  evidence,  that  some  fraud  or 
ftoncealment,  or  improper  practice,  was  used  to  induce  him  to 
take  it. 

§   29.     Burden  on  the  Carrier  to  Show  Loss  within  Exemption. — 

Where  goods  are  received  by  a  common  carrier,  to  be  carried 
under  the  usual  bill  of  lading,  containing  a  clause  exempting 
the  carrier  from  certain  liabilities,  other  than  those  arising 
from  his  own  fault  or  negligence,  which  are  assented  to  by 
the  shipper,  and  the  goods  are  lost  or  injured,  it  is  incumbent 
upon  the  carrier  to  show  that  the  loss  resulted  from  one  of 
the  causes  excepted  in  the  receipt,  as  explained  in  these  in- 
structions, or  fi'om  an  act  of  God,  or  the  public  enemies. 
Western  T.  Co.  vs.  Neiohall,  24  111.,  466:  Mitchell  vs.  The 
U.  S.  Ex.  Co.,  46  la.,  214;  U.  8.  Ex.  Co.  vs.  Graham,  26  Ohio 
St.,  595;  Eed.  Car.,  etc.,  §  267;  Shaw  vs.  Gardner,  12  Gray, 
488. 

§  30.  Liability  not  Limited  by  Notice. — The  jury  are  in- 
structed, that  a  common  carrier  cannot  discharge  itself  from 
the  duty  to  safely  carry  and  deliver  goods  intrusted  to  it  for 
transportation,  by  notice,  public  or  private,  of  the  terms  on 
which  it  receives  or  carries  goods  or  projjcrty;  to  make  such 
notice  effectual,  the  shipper  must  assent  to  its  terms.  Edwd. 
on  Bailments,  §  560;  iV".  J.  Steam  Man.  Co.  vs.  Merchants 
Banli,  6  How.  (U.  S.),  344;  McMillan  vs.  MicJiUjan,  etc.,  lid. 


104  CAKKIEKS     OF    GOODS. 

Co.,  16  Mich.,  79;  Blossom  vs.  Dodd,  43  K  T.  264;     Yernej 
vs.  Sweitzei\  32  Penn.  St.,  208. 

The  court  instructs  you,  that  the  common  law  liability  of 
a  common  carrier,  as  explained  in  these  instructions,  cannot  be 
restricted  by  notice,  even  when  sncli  notice  is  brought  home 
to  the  knowledge  of  the  shipper.  In  order  to  give  a  notice 
this  effect,  it  must  appear,  by  a  preponderance  of  the  evidence, 
that  the  shipper  expressly  assented  to  the  terms  of  the  notice, 
and  whether  he  did  so  assent,  is  a  question  of  fact  for  tht 

§  31.  Must  Exercise  Reasonable  Care  to  Prevent  Loss  within 
Exemption. — Although  the  jury  may  believe,  from  the  evi- 
dence, that  the  goods  in  question  were  destroyed  {by  fire),  still, 
if  the  jury  further  believe,  from  the  evidence,  that  by  the 
exercise  of  ordinary  prudence  on  the  part  of  the  defendant,  or 
its  servants,  such  destruction  might  have  been  jirevented,  then 
the  defendant  is  liable  in  this  suit.  Penn.  Rd.  Co.  vs.  Fries., 
87  Penn.  St.,  234. 

§  32.  Shipper  Bound  by  Receipt,  Wlien. — The  court  instructs 
the  jury,  that  if  a  shipper  take  a  receipt  for  his  goods  from 
a  common  carrier,  which  contains  conditions  limiting  the  lia- 
bility of  the  carrier,  with  a  full  understanding  of  such  condi- 
tions, and  intending  to  assent  to  them,  it  becomes  his  contract 
as  full  as  if  he  had  signed  it,  and  he  will  be  bound  by  the  con- 
ditions; but  if  a  shipper  accept  such  a  receipt,  because  he  has 
no  alternative  but  to  receive  it,  and  not  intending  to  assent  to 
the  conditions  limiting  the  liability  of  the  carrier,  then  he 
will  not  be  bound  by  such  conditions.  The  Anchor  Line  vs. 
Dater,  68  111.,  369. 

§  33.     Sliipper  not  Bound  by  Notice  Printed  on  Receipt. — The 

court  instructs  the  jury,  that  the  printed  notice  upon  the  (bach 
of  the)  receij)t,  of  the  terms  and  conditions  upon  which  the 
defendant  received  and  carried  the  goods  in  question,  is  not 
binding  u]»on  the  ])laintiff,  unless  the  jury  find,  from  the  evi- 
dence, that  liis  attention  was  particularly  called  to  that  notice 
when  he  took  the  receipt,  and  that  he  expressly  apsciiled  to 
the   terms  and  conditions  therein  contained.     The  fact   alone 


CARKIKRS    OF    GOODS.  105 

that  the  i)laintiflf  accepted  the  receipt  is  no  evidence  that  he 
assented  to  the  terms  of  said  notice.  E.  da  W.  Tr.  Co.  vs. 
Datei\  91  111.,  195. 

§  34.  Can  Not  Restrict  Liability  Arising  from  its  Ovvn  Negli- 
gence.— The  law,  on  grounds  of  public  ]x>licj,  will  not  pernait 
a  common  carrier  of  passengers  or  freight,  to  contract  against 
liability  for  its  own  actual  negligence,  or  tliat  of  its  servants 
and  employes.  TJ.  M.  S.  Co.  vs.  Ind..,  etc.,  lid.  Co.,  1  Disney 
(Ohio),  4SU;  Erie,  etc.,  Ed.  Co.  vs.  Wilcox,  84  III,  239;  Ind., 
etc.,  Rd.  Co.  vs.  Allen,  31  Ind.,  394;  Penn.  lid.  Co.  vs.  3fc- 
Closkey,  23  Penn.  St.,  526;  School  Dis.,  etc.,  vs.  Boston,  etc., 
Rd.  Co.,  102  Mass.  552. 

The  court  instructs  the  jury,  that  although  they  may  believe, 
from  the  evidence,  that  there  was  a  special  contract  between 
the  plaintiff  and  the  defendant,  that  defendant  should  not  be 
liable  for  any  loss  or  injury  to  said  goods,  which  might  occur 
by  reason  of  *  *  *  still,  such  a  contract  would  not  relieve 
the  defendant  from  loss  resulting  from  negligence,  or  the  want 
of  ordinary  care  and  prudence  on  the  part  of  the  defendant, 
or  its  servants. 

And  in  this  case,  if  you  believe,  from  the  evidence,  that  the 
defendant  w^as  guilty  of  negligence,  or  any  want  of  ordinary 
care  and  caution,  and  that  the  loss  complained  of  resulted 
therefrom,  without  any  fault  upon  the  part  of  the  plaintiff, 
then  he  has  a  right  to  recover  in  this  case.  111.  C.  Rd.  Co. 
vs.  Smyser  et  al.,  38  111.,  354;  L.  i&  C.  Rd.  Co.  vs.  Brownlee, 
14  Bush,  590. 

You  are  instructed,  that  by  the  terms  of  the  receipt  intro- 
duced in  evidence  in  this  case  the  defendant  is  not  liable  for 
any  loss  or  damage  to  the  goods  in  question,  arising  from  or 
caused  {hy  fi)'e)  while  in  the  possession  of  defen  'ants  as  com- 
mon carriers,  unless  such  ijii'e),  or  loss  or  damage  was  occa- 
sioned by  some  want  of  ordinary  prudence  or  reasonable  care 
on  the  part  of  the  defendant;  and  although  you  may  believe, 
from  the  evidence,  that  said  goods  were  destroyed  {by  fire) 
while  in  the  possession  of  the  defendants,  still  the  defendant 
is  not  liable  therefor,  unless  you  further  believe,  from  the  evi- 
dence, that  the  said  defendant,  or  its  servants,  by  the  exercise 
of  ordinary  diligence  or  reasonable  care,  might  have  avoided 
such  loss. 


106  CAKKIEKS     OF    GOODS. 

Yoli  are  instructed  that  a  common  carrier  is  liable  for  the 
full  value  of  goods,  if  they  are  lost  through  his  negligence, 
notwithstanding  the  bill  of  lading  provides  that  the  carrier 
shall  not  be  liable  beyond  an  amount  therein  named,  provided 
it  is  understood  by  the  parties  when  the  bil4  of  lading  is  given, 
that  the  sum  so  agreed  upon  is  less  than  the  value  of  the  goods. 
Whether,  in  this  case,  the  goods  in  question  were  lost  through 
the  negligence  of  the  defendant,  and  whether  the  goods  \vere 
worth  more  than  the  price  mentioned  in  the  bill  of  lading,  and 
whether  this  fact  was  known  to  the  defendant  when  the  bill 
of  lading  was  given,  are  all  questions  of  fact  to  be  determined 
by  you  from  the  evidence  in  the  case.  U.  S.  Ex.  Co.  vs. 
JBackman,  28  Ohio  St.,  144. 

§  35.  Burden  of  Proof. — If  goods  are  lost  or  damaged  while 
in  the  custody  of  a  common  carrier,  the  presumption  of  law  is 
that  such  loss  or  damage  was  occasioned  by  its  default  or  neg- 
ligence, and  the  burden  of  proof  is  on  the  carrier  to  show  tliat 
it  arose  from  causes  for  which  the  carrier  was  not  respon- 
sible. Nelson  vs.  Woodrxiff.,  1  Black.,  156;  Lindsey  vs.  Chica- 
go, M.  (&  St.  F.  R.  Co.,  33  N.  W.  Rep.,  7. 


CHAPTER  XL 

CAEEIEKS  OF  LIVE  STOCK. 


Sec.    1.  Duties  and  liabilities, 

2.  Care  required  of. 

3.  Injuries  without  carrier's  fault. 

4.  Hogs — Care  required  of  carrier. 

5.  Degree  of  care  to  avoid  delay. 

6.  Suit  by  carrier  for  freight  charges. 

7.  Carrier's  lien, 

§  1.  Duties  and  Liabilities  of. — It  is  the  duty  of  a  railroad 
company  which  undertakes  to  carry  live  stock  for  hire,  to  ex- 
ercise all  reasonable  care,  skill  and  judgment  to  provide  cars 
of  sufficient  strength  to  prevent  the  animals  from  breaking 
through  the  same;  and  it  will  be  responsible  for  a  loss  if 
it  occurs  through  its  failure  to  exercise  such  care,  skill  and 
judgment,  although  the  animals  be  unruly  and  vicious.  Smith 
V.  ]\"'ew  Haven,  etc.,  Rd.  Co.,  12  Allen,  531;  Great  W.  Rd.  Co. 
V.  Haiokms,  18  Mich.,  427;  McDaniel  v.  C.  (&  JV.  W.  Rd. 
Co.,  24  la.,  412;  Peters  v.  iV".  0.  (&  C.  R.R.,  16  La.  Ann., 
222;  0.,  etc.,  R.  R.  Co.  v.  Pratt,  89  U.  S.,  123. 

§  2.     What    Care  Required    of    Carriers  of  Live    Stock. — The 

jury  are  instructed,  that  the  carrier  of  live  stock  must  exer- 
cise all  reasonable  care,  skill  and  judgment  to  provide  safe  and 
pro|)erly  constructed  cars,  in  which  to  carry  the  stock — to 
provide  stations  or  stopping  places  along  the  I'oad,  wliere 
cattle  may  be  fed;  and  if  it  fails  to  exercise  such  care,  skill  and 
judgment,  and  loss  or  damage  results  therefrom,  the  carrier 
will  be  liable  to  the  owner  for  the  damage  thus  sustained,  if 
he  is  himself  free  from  fault  or  negligence  contributing  to 
such  injury. 

A  common  carrier  for  hire  is  bound  to  exercise  all  the  care 
and  diligence  which  prudent  and  cautious  men,  in  the  same 
business,  usually  employ,  for  the  safety  and  preservation  of  the 

(107) 


108  CARRIERS    OF    LIVE    STOCK. 

property  confided  to  its  care;  and,  in  this  case,  if  you  believe, 
from  the  evidence,  that  the  defendant  did  not  use  all  such  rea- 
sonable care  and  prudence  to  pi-ovide  a  safe  and  suitable  car 
for  plaintiff's  stock,  or  in  the  running  and  manag  nicnt  of  the 
train  in  question,  and  that,  by  reason  of  such  want  of  cai-e 
and  diligence,  plaintiff's  stock  was  injured,  as  charged  in  the 
declaration,  then  the  defendant  is  liable  for  the  resulting 
damage  to  the  amount  proved  by  the  evidence.  Rhodes  vs. 
Louisville,  eto.^  Rd.  Co.,  9  Bush,  6SS. 

If  a  common  carrier  receives  live  stock  to  be  transported 
from  one  point  to  another,  then  he  is  bound  to  carry  it  safely 
to  the  point  of  destination,  and  there  have  it  ready  to  deliver 
to  the  consignee  and  nothing  will  excuse  such  readiness  to 
deliver  excei^t  what  are  known  as  acts  of  God  or  the  public 
enemy,  or  such  accidents  as  arise  from  the  conduct,  vicious 
temjier  or  propensities  of  the  animals  themselves.  Maynard, 
vs.  S.,  etc.,  Rd.  Co.,  71  K  Y.  ISO;  Banlerg  vs.  J.  C.Rd.  Co., 
9  S.  C,  61;  McCoy  vs.  R.  &  1).  M.  Rd.  Co.,  44  la.,  424;  6. 
&  Ala.Rd.  Co.YS.  Benlien,  52  Ala.,  106;  Angell  Car.,  §  214. 

§  3.  Injuries  without  Carrier's  Fault. — If  the  jury  believe, 
from  the  evidence,  that  the  defendant  furnished  a  suitable  car 
in  whicli  to  shin  the  stock  in  question,  and  used  all  due  care 
in  managing  and  transporting  the  same,  and  that  the  injur}' 
complained  of  was  caused  by  the  [peculiar  cliaracter  of  the 
animals  themselves,  such  as  bad  temper,  unusual  restiveness 
or  viciousness,  then  the  defendant  is  not  liable  in  this  case. 
Smith  vs.  iV".  II.,  etc.,  Rd.  Co.,  12  Allen,  531;  Evans  vs. 
Fltchhiirg,  etc.,  Rd.  Co.,  Ill  Mass.,  142. 

You  are  instructed,  that  although  they  may  believe,  from 
the  evidence,  that  the  car  in  which  plaintiff's  stock  was  shipped 
was  defective,  in  not  having,  etc.,  still,  if  you  furtlier  believe, 
from  the  evidence,  that  such  defect  in  no  manner  contributed 
to  the  injury  complained  of,  then  the  defendant  should  not  be 
held  liable  in  this  case  by  reason  of  such  defect  in  said  cai'. 

If  you  believe,  from  the  evidence,  that  the  car  in  which  the 
stock  was  shipjied  was  then  in  a  fafe  and  suitable  condition 
and  was  managed  in  a  careful  and  prudent  manner,  and  that 
the  injuries  complained  of  were  not  caused  by  the  carelessness 
or  bad  management  of  those  luiving  charge  of  the  train,  then 
you  should  find  the  defendant  not  guilty. 


CARRIERS    OF    LIVE    STOCK.  K  9 

§  4.  Cfire  Required  of  Carriers  of  Hogs. — That  wlien  lioi^^s  ;ue 
shipi'od  in  railroad  cars  at  a  season  of  the  year  when,  foi-  tlieir 
])roi)er  care  and  treatment,  it  is  necessary  to  apply  water  to 
prevent  thetn  from  being  suffocated  or  overheated,  then  it  is 
the  duty  of  the  i-ailroad  comi)any  to  have  proper  stations  and 
apph'ances  for  furnishing  such  water,  and  to  so  run  and  manage 
its  trains  as  to  afford  reasonable  opportunities  to  the  persons 
in  charge  of  tlie  stock  to  apply  such  water,  and  if  it  does  not 
exercise  such  care,  skill  and  judgment,  and  loss  or  damage  to 
the  stock  results  therefrom,  the  carrier  will  be  liable  to  the 
owner  for  the  damage  thus  sustained;  provided,  lie  is  himself 
free  from  fault  or  negligence  contributing  to  such  injury. 
Edwd.  on  Bail.,  §  CS2;  Toledo^  etc.,  Rd.  Go.  vs.  Thompson, 
•71  III,  434. 

§  5.  Degree  of  Care  Required  to  Avoid  Delay. — The  jury  are 
instructed,  that  the  carrier  of  live  stock  for  pay  must  exercise 
reasonable  diligence  in  the  business,  and  complete  the  journey 
within  a  reasonable  time,  and  if  ho  does  not  do  so,  and  the 
stock  is  injured  by  the  delay,  tlie  cari-ier  will  be  liable  to  the 
owner  for  all  damage  caused  by  such  delay.  Edwd.  on  Bail., 
§  680;  Tucker  \&.  Pacific  lid.  Co.,  50  Mo.,  385;  Sisson  vs. 
Cleveland,  14  Mich.,  489. 

If  you  believe,  from  the  evidence,  that  some  time,  on  or 
about,  etc.,  the  plaintiff  shipped  on  board  the  defendant's  cars 
tlie  (livestock)  to  be  transported  from  O.  to  C,  and  that  there 
was  no  special  contract  between  the  parties  in  relation  to  the 
time  of  starting  the  train  or  of  its  aiTival  at  C,  then  it  was  the 
duty  of  the  defendant  to  start  the  train  and  to  make  the  jour- 
ney within  a  reasonable  time  after  so  receiving  the  stock;  and 
if  you  further  believe,  from  the  evidence,  that  the  cars  con- 
taining said  stock  did  not  arrive  at  C.  within  a  reasonable  time 
after  the  stock  was  placed  on  the  cars,  and  that,  by  reason  of 
such  delay,  the  animals  were  unnecessarily  reduced  in  weight, 
or  otherwise  de|)reciated  in  value,  and  the  ])laintiff  thereby 
damaged,  then  the  defendant  is  liable  for  such  damage  in  this 
suit. 

§  6.  Suit  by  Carrier  for  Freight  and  Charges. — If  the  jury 
believe,  from    the   evidence,  that   at  the    time    in    question 


110  CAEKIEES    OF   LIVE    STOCK. 

the  plaintiff  was  a  common  cai'rier,  and  in  tlie  ordinary  course 
of  business  received  the  goods  in  question,  in  the  proper  line 
of  transit,  and  paid  freight  and  charges  thereon  to  preceding 
carriers  or  warehousemen,  then  the  plaintiff  is  entitled  to 
reasonable  charges  for  the  transportation  of  said  goods,  besides 
the  amount  so  ])aid  to  others,  althougli  the  jury  may  believe, 
from  the  evidence,  that  said  goods  were  damaged  before  they 
reached  the  plaintiff,  w^hile  in  the  hands  of  some  prioi*  carrier; 
provided  the  jury  further  believe,  from  the  evidence,  that  said 
goods  were  not  injured  after  coming  to  the  hands  of  plaintiff. 
Bissell  vs.  Price,  16  111.,  408;  C.  <&  m  W.  Ed.  Co.  vs.  iT.  W. 
U.  F.  Co.,  38  la.,  37T;  Eed.  Car.,  §  282. 

§  7.  Carrier's  Lien. — The  jury  are  instructed,  that  a  com- 
mon carrier  has  no  lien  upon,  or  right  to  detain,  goods  or  mer- 
cliandise  shipped  from  one  place,  or  at  one  time,  for  charges  on 
other  goods  shipped  at  another  place,  or  anotlier  time,  unless 
there  is  some  contract  to  that  effect  expressed  or  implied 
between  the  parties  (except  on  proof  of  general  usage,  etc.). 
Edwd.  on  Bail.,  §  645;  Red.  Car.,  §  279. 

If  3"ou  believe,  from  the  evidence,  that  the  plaintiff,  before 
the  commencement  of  this  suit  by  himself  or  his  agent, 
demanded  the  property  in  question  of  the  defendant,  and  that 
the  defendant  then  refused  to  deliver  the  property,  but  did  not 
claim,  at  the  time  of  refusal  to  retain  it  for  the  charges  there- 
on, then  he  is  now  estopped  from  setting  up  that  claim  as  a 
reason  for  not  delivering  the  property  on  demand. 
[!See  Replevin  and  Trover.'] 


CHAPTER  XII. 
CAEPJERS  OF  PASSENGERS  AND  BAGGAGE. 


\See  Neg ligence — Railfoad.] 

Sec.     1.  Common  carrier  defined. 

2.  Injury,  jyriuta  facie  evidence  of  negligence. 

8.  Decree  of  care  required  of  carrier  of  passengers. 

4.  Decree  of  care  required  of  the  passenger. 

5.  Jumping  from  the  cars,  not  negligence,  when. 

6.  Jumping  from  the  cars,  negligence,  when. 

7.  Carrier  not  an  insurer  against  accidents,  when. 

8.  Pa!=senger  takes  all  the  risks  necessarily  incident  to  the  mode  of 

travel. 

9.  Jjiability  for  baggage. 

10.  Trunk  containing  articles  of  special  value,  carrier  should  be  noti- 

fied. 

11.  Baggage,  carrier's  liability  terminates,  when. 

§  1.  Common  Currier  Defined. — If  tlie  jnry  believe,  from  the 
evidence,  that  the  defendant  corporation  was  engaged  in  tlie 
business  of  transporting  passengers  and  freight,  for  hire,  upon 
a  railroad  operated  by  said  company,  then  the  law  denomi- 
nates the  defendant  a  common  carrier. 

§  2.  Injury  Prima  Facie  Evidence  of  Negligence.— If  the  jury 
believe,  from  the  evidence,  that  the  plaintiff  received  an  injury 
while  riding  on  the  cars  of  the  defendant,  by  reason  of  a  col- 
lision of  said  cars  with  other  cars,  and  while  he  was  himself 
using  all  reasonable  care  and  caution  to  avoid  injury,  as  charged 
in  the  declaration,  then  these  facts  will  make  o,  prima  facie 
case  of  negligence  agaimst  the  defendant;  and  the  burden  of 
proof  will  be  on  the  defendant  to  show  that  it,  by  its  agents 
and  servants,  did  use  all  reasonably  practicable  care  and  pre- 
caution to  prevent  such  injury.  Sliear.  &  Red.  on  Neg., 
§  268;  Edwd.  on  Bail.,  §  711;  Cooley  on  Torts,  663. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  was  a 
passenger  on  board  the  cars  of  the  defendant,  in  the  month  of 

(111) 


112  CAKKIERS    OF    PASSENGERS    AND    BAGGAGE, 

last,  and  that  those  cars  came  in  collision  with  another 


train  of  cars,  by  and  through  the  negh'gence  of  the  defendant's 
agents  or  servants,  as  charged  in  the  declaration,  aiid  that  hj 
reason  of  such  negligence  the  plaintiff  was  injured  and  sustained 
damage,  and  also  that  he  was  himself  using  all  reasonable  care 
and  caution  to  avoid  such  injury,  then  you  should  tind  a  ver- 
dict for  the  plaintiff,  and  assess  his  damages.  C,  B.  &  Q.  11. 
R.  vs.  Georije,  19  111.,  510. 

If  you  believe,  from  the  evidence,  that  the  ])laintiff  was  a 
passenger  on  board  the  defendant's  cars,  and  was  injured  by 
means  of  an  accident  occurring  on  the  railroad  of  the  defend- 
ant, while  the  plaintiff  was  exercising  all  reasonable  care  and 
caution  to  avoid  the  injury,  as  charged  in  the  declaration,  then 
the  burden  of  showing  tliat  such  accident  was  not  the  result  of 
the  negligence  or  lack  of  skill  of  the  defendant,  or  its  agents, 
is  cast  upon  the  defendant.  Sullivan  vs.  Philadelphia^  etc., 
Rd.  Co.,  30  Penn.  St.,  231;  Meier  vs.  Penn.  Rd.  Co.,  61 
Penn.  St.,  22.5;  Boyce  vs.  Cal.  Stage  Co.,  25  Cal.,  400. 

If  you  believe,  from  the  evidence,  that  the  plaintiff'  was 
injured  by  the  overturning  of  the  car  in  wliich  he  was  a  pas- 
senger (or  b}'  a  collision  of  the  cars,  etc.),  and  was  thereby 
injured,  without  any  fault  upon  liis  part,  he  thereb}'  makes 
out  2i  prima  facie  c^id  of  negligence  against  the  comi  any,  and 
places  upon  it  the  burden  of  proving,  by  a  preponderance  of 
evidence,  that  the  accident  resulted  from  a  cause  which  could 
not  have  been  foreseen  or  prevented  by  the  exerciire  of  all 
reasonable  care,  vigilance  and  foresight  on  behalf  of  the  com- 
pany. P.  C.  <&  H.  L.  R.  R.  Co.  vs.  Thompson,  56  II!.,  ISS; 
Lemon  vs.    Chanslor,  68  Mo.,  340;  Ped.  on  Car.,  etc.,  §  531. 

The  court  instructs  you  that  where  a  railway  car  is  thrown 
from  the  track,  and  the  passenger  for  hire  is  thereby  injured, 
the  presumption  is  that  the  accident  resulted  either  from  the 
fact  that  the  track  was  out  of  order,  or  the  train  badly  managed, 
or  both  combined,  and  the  onus  is  on  the  company  to  show, 
i)y  a  ])i-eponderance  of  the  evidence,  that  it  was  not  negli- 
gent in  any  of  these  respects.  P.  P.  <&  J.  R.  R.  Co.  vs. 
Reynolds,  88  111.,  418;  Fairchildy^.  Cal.  Stage  Co.,  13  Cal., 
599. 

If  you  believe,  from  the  evidence,  that  at  the  time  in  ques- 
tion the  plaintiff  was  a  passenger  on  board  of  defendant's  cars 


CARKIERS    OF     I'ASSENGEES    AND    BAGGAGE.  110 

and  tliat  lie  I'cceivcd  an  injury,  as  alleo-ed  in  tlie  declaration, 
and  that  he  was  himself,  at  the  time,  exercisinj^  all  reasonable 
care  and  caution  to  avoid  the  injury;  and  if  yon  further  be- 
lieve, from  the  evidence,  that  the  accident  and  injury  com- 
plained of  happened  by  reason  of  the  negligent  and  unpkillfnl 
construction  of  the  track  of  defendant's  railroad,  or  from  the 
want  of  reasonable  care  and  attention  in  keeping  the  track  in 
repair,  or  in  the  management  or  control  of  the  train  on  which 
the  i^laintiff  was  a  passenger,  then  you  should  find  a  verdicc 
for  the  plaintiff. 

§  3.     Degree  of  Care  required  of  the  Carrier  of  Passengers. — The 

court  instructs  the  jury,  that  common  carriers  of  persons  are 
required  to  do  all  that  human  care,  vigilance  and  foresight 
can  reasonably  do,  in  view  of  the  character  and  mode  of  con- 
veyance adopted,  to  prevent  accidents  to  passengers. 

"  1.  The  court  instructs  the  jury,  that  if  they  believe,  from 
all  the  evidence  in  this  case,  that  on  or  about  the  16th  day  of 
February,  1880,  the  defendant  was  controlling  and  oi)crating 
a  train  of  cars  on  a  railroad  in  this  county,  and  that  the  defend- 
ant received  the  plaintiff  on  its  cars  as  a  passenger,  for  hire, 
then  the  cpurt  instructs  the  jury  that  the  defendant  was  bound 
to  make  up  its  train,  couple  its  cars,  and  manage  and  control 
its  cars  and  engines  in  such  a  careful,  skillful  and  prudent 
manner  as  to  carry  the  plaintiff  with  reasonable  safety  as  such 
passenger.     II.  &  St.  J.  E.  R.  Co.  vs.  Martin,  111   111.,  219. 

The  utmost  degree  of  care  which  the  human  mind  is  capable 
of  inventing  is  not  required,  but  the  highest  degree  of  care 
and  diligence  which  is  reasonably  practicable,  under  the  cir- 
cumstances of  the  case,  is  required.  Tidier  vs.  Talbot.  23  111., 
357;  Shear.  &  Red.  on  Neg.,  §  266;  Edwd.  on  Bail.,  §  710; 
Cooley  on  Torts,  §  644;  Edumrds  vs.  Lord,  49  Me.,  279; 
Sales  vs.  W.  Stage  Co.,  4  la.,  547;  FaircMld  vs.  Cal.  Stage 
Co.,  13  Cal.,  599;  Eed.  Car.,  §  340;  Taylor  vs.  Daij,  16  Vt., 
566. 

Carriers  of  passengers  by  railroad  are  bound  to  use  all  rea- 
sonably practicable  precautions,  as  far  as  human  foresight  will 
go,  for  the  safety  of  their  ]3assengers;  and  they  are  answer- 
able to  injured  passengers  for  slight  neglect  of  themselves  or 
agents,  in  respect  to  the  condition  of  the  track,  and  conduct 


114  CAERJEES    OF     PASSEKGEUS    AND    BAGGAGE. 

and  jiianagQinent  of  their  trains,  if  injury  ensues  therefrom, 
and  the  passengers  themselves  are  without  fault.  G.  &  C.  U. 
Ed.  Co.  vs.  Yarwood,  17  111.,  509;  Fuller  vs.  iV^.  Ed.  Co.,  21 
Conn.,  557. 

You  are  instructed,  that  the  law  imposes  upon  common  car- 
riers of  passengers  the  duty  of  providing  for  their  safe  con- 
veyance, as  far  as  human  care  and  foresight  can  reasonably 
secure  that  result;  and  the  passenger  takes  no  risks,  except 
such  as  are  necessarily  incident  to  the  particular  mode  of  con- 
vej'ance  or  travel,  while  the  carrier  is  using  the  utmost  care 
and  diligence  that  is  reasonably  practicable.  Hollsy  vs.  B.  G. 
Co.,  8  Gray,  131. 

The  court  instructs  you,  as  a  matter  of  law,  that  if  there  is 
the  least  failure  by  a  common  carrier  of  passengers  to  exer- 
cise all  the  care  and  diligence  that  is  reasonably  ]:>racticable,  in 
keeping  its  vehicles  and  appliances  in  safe  condition,  then  the 
duty  of  the  carrier  is  not  fullilled,  and  it  is  answerable  for  any 
injury  or  damage  of  which  such  neglect  is  the  proximate 
cause;  provided,  the  jierson  injured  is  himself  using  reason- 
able care  and  caution  to  avoid  such  injury,  Bi'igys  vs.  Tay- 
lor, 28  Vt.,  180. 

You  are  instructed,  that  it  is  the  duty  of  a  railway  company 
employed  in  ti'ansporting  passengers,  to  do  all  that  liuman 
care,  vigilance  and  fore^sight  can  reasonably  do,  consistent  with 
the  mode  of  conveyance  and  the  practical  operation  of  the 
road,  in  providing  safe  coaches,  machinery,  tracks  and  roadway, 
for  the  safety  of  the  passengers,  and  to  keep  the  same  in  good 
repair;  and  if,  from  the  evidence  in  this  case,  you  believe  that 
tlie  plaintiff,  while  a  passenger  on  tlie  cars  of  defendant,  re- 
ceived an  injury  resulting  from  the  negligence  of  the  defend- 
ant, or  its  servants,  in  either  of  the  above  particulars,  you  will 
tind  for  the  plalntilf ;  provided,  you  further  believe,  from  the 
evidence,  that  the  ])laintifi:'s  own  negligence  did  not  contribute 
to  such  injury. 

The  court  instructs  you,  that  the  omission  of  any  reasonably 
practicable  precaution  which  would  tend  to  insure  the  safety 
of  the  passenger,  or  lessen  the  danger  to  him,  constitutes  such 
a  neglect  in  the  carriers  of  passengers  as  will  make  them 
answerable  in  damages  to  a  passenger  injured  by  reason  of  such 
neglect,  if  the  passenger  is  himself  free  from  fault. 


CARKIEUS    OF     PASSENGERS    AND     i:AGGAGE.  115 

§  4.  Degree  of  Care  Required  of  the  Passenger. — Tlic  court 
instructs  the  jury,  that  a  passenger  on  a  ])ub]ic  conveyance,  in 
charge  of  a  coinuion  carrier,  is  only  required  to  exercise  such 
care  and  foresight  as  is  usual,  under  similar  circumstances,  with 
careful  persons  possessing  ordinary  intelligence. 

§  5.  Jumping  from  the  Cars  Not  Negligence,  When. — The 
court  instructs  the  jury,  that  the  fact,  if  proved,  that  the 
plaintiff  jumj^ed  from  the  cars  to  the  ground,  while  said  cars 
were  in  motion,  and  thus  sustained  the  injury  complained  of, 
will  not  alone  deprive  him  of  his  right  to  a  recovery  against 
defendant,  if  the  jury  further  believe,  from  the  evidence,  that 
an  accident  had  occurred  to  the  train,  which  resulted  from 
any  want  of  reasonable  care  and  caution  on  the  part  of  the  de- 
fendant, and  that  the  plaintiff  had  reasonable  ground  to  be- 
lieve, and  did  believe,  that  his  life  or  limb  was  in  danger,  and 
that  it  was  necessary  to  leap  fi-om  the  cars  in  order  to  avoid 
the  danger  which  threatened  him.  The  question  is  not  so 
much  whether  there  was,  in  point  of  fact,  any  danger  in 
remaining  on  the  cars,  as  whether  the  plaintiff  reasonably  ap- 
prehended danger,  and  so  leaped  from  the  cars  to  escape  it. 
Ewd.  on  Bail.,  §  719;  Shearm.  &  Eed.  on  Neg.,  §  282;  Buell 
vs.  JSr.  Y.  Cent.  R.  R.  Co.,  31  K  Y.,  314;  Gcdena  &  C  Rd. 
Co.  vs.  Tarioood,  17  111.,  509;  Ked.  Gar.,  §  382;  S.  W.  Rd.  Co. 
vs.  Panll\  24  Ga.,  356;  Jngalls  vs.  Bills,  9  Met.,  1;  Ry.  Co. 
vs.  Aspell,  23  Penn  St.,  147. 

Although  you  may  believe,  from  the  evidence,  that  the 
plaintiff  lea;>ed  from  the  cars  while  they  were  in  motion  at 
the  time  of  the  alK  god  injury,  and  tliereb}'^  caused  the  injury 
complained  of,  and  that  if  he  had  remained  on  the  car  he 
wouM  not  have  been  injured,  still  this  would  not  relieve  the 
company  from  liability,  provided  you  further  believe,  from  the 
evidence,  that  the  plaintiff  had  reasonable  grounds  to  believe, 
Hud  did  believe,  that  his  life  or  limb  was  in  danger,  and  that 
it  was  necessary  to  leap  from  the  cars  in  order  to  avoid  the 
danger,  and  furtlier,  that  this  apparent  danger  was  brought 
about  by  any  negligence  or  want  of  reasonable  care  and  fore- 
sight on  the  part  of  the  defendant. 

§  6.  Jumping  from  the  Cars  Negligence,  When. — If  the  jury 
believe,  from  the  evidence,  that   the  plaintiff'  leaped  from  the 


116  CAEEIEKS    OF     i'ASSENGEKS    AND    BAGGAGE. 

cars,  at  tlie  time  of  the  injury,  under  circumstances  tliat  would 
not  have  justitied  suci  an  act  on  the  part  of  an  ordinarily 
careful  and  prudent  man,  and  that  the  injury  was  caused  by 
such  jumping,  and  that  if  he  had  remained  on  the  car  no 
injury  would  have  happened,  then  the  plaintiff  cannot  recover 
in  this  suit.  Red.  Car.,  §  83;  Lucas  vs.  Taunton^  etc.,  lid. 
Co.,  6  Gray,  64:  j  Damoiit  vs.  N.  0.  etc.^  Bd.  Co.^  9  La.  Ann., 
411. 

§  1.  Carrier  not  an  Insurer  against  Accilents. — That  while 
the  defendant  was  bound  to  do  all  that  human  care,  vigilance 
and  foresight  could  reasonably  do,  consistent  with  the  practical 
operation  of  the  road,  in  order  to  prevent  injuries  to  its  pas- 
sengers, still  the  com.pany  do  not  insure  tlie  absolute  safety  of 
its  ])assengers;  and,  in  this  case,  if  the  jury  believe  from  the 
evidence  that  the  injury  complained  of  was  occasioned  by  an 
internal  or  hidden  defect  in  the  *  *  *  M^hich  a 
thorough  and  careful  examination  would  not  disclose,  and 
which  could  not  be  guarded  against  by  the  exercise  of  a  sound 
judgment  and  the  most  vigilant  oversight  and  care,  then  the 
defendant  is  not  liable  for  the  injury  so  occasioned.  P.,  C.  & 
E.  L.  R.  E.  Co.  vs.  Thompson,  56  111.,  138;  Eed.  Car.,  §  310  ; 
Ingalls  vs.  Biels,  9  Met.  1;  Ladd  vs.  Ifew  B.  Bd.  Co.,  119 
Mass.,  412;  Taylor  vs.  G^  T  B.  D.  Co.,  48  IS".  H.,  304; 
McPadden  vs.  iV^.  C  Bd.  Co.,  44  ^.  Y.,  278;  Sherlock  vs. 
AH i?ig,  4:4:  Ind.,  184;  Grand  B.  &  Ind.  Bd.  Co.  vs.  Boyd,  65 
Ind.,  526. 

Tf  you  believe,  from  the  evidence,  that  the  injury  to  the 
plaintiff  in  this  suit  happened  to  him  by  mere  accident,  with- 
out any  fault  on  the  part  of  the  defendant,  or  its  employes, 
then  the  ])laintiff  cannot  recover  in  this  action. 

If  you  believe,  from  the  evidence,  that  the  defendant  exer- 
cised all  reasonably  practicable  care,  diligence  and  skill,  in  the 
consti'uction,  preservation  and  repairs  of  its  track,  and  in  man- 
aging and  operating  its  road,  at  the  tiine  of  the  accident,  and 
that  the  accident  could  not  have  been  prevented  by  the  use  of 
the  utmost  practicable  care,  diligence  and  skill,  then  the  plaint- 
iff cannot  recover  in  this  action. 

The  court  instructs  you,  that  while  connnon  carriers  of  pas- 
sengers are  held  to  the  very  liighest  degree  of  care  and  pru- 


CARRIERS    OF    PASSENGERS    AND    BAGGAGE.  117 

dence  wliicli  is  consistent  with  the  jn-actical  operation  of  tlicir 
vehicles  and  the  transaction  of  their  business,  still  they  are  nut 
absolute  insurers  of  the  personal  safety  of  their  passengers. 

And,  in  this  case,  though  you  may  believe,  from  the  evi- 
dence, that  the  plaintiii  was  injured  while  a  passenger  on  de- 
fendant's cars,  still,  if  you  further  believe,  from  the  evidence, 
that  the  defendant  and  its  servants  were  not  guilty  of  any  neg- 
ligence which  contributed  to  such  injury,  tlien  the  defendant 
is  not  liable  in  this  action.  G.  (&  C.  TJnion  li.  IL  Co.  vs. 
Yarwood^  15  111.,  4GS. 

§  8.  The  Passenger  Takes  all  the  Risks  Necessarilj''  Incident  to 
the  Mode  of  Convejance. — The  jury  are  instructed,  that  plaintiff, 
as  a  passenger  on  the  defendant's  car,  as  a  matter  of  law,  is 
presumed  to  have  taken  upon  himself  all  the  risks  necessarily 
incident  to  that  uiode  of  traveling ;  and  if  the  jury  believe, 
from  the  evidence,  that  without  tlie  fault  of  the  defendant,  but 
by  inevitable  accident,  plaintiff  was  injured,  the  jury  should 
iind  for  the  defendant. 

The  court  instructs  you,  as  a  matter  of  law,  that  a  passen- 
ger upon  a  railroad  train  takes  all  the  risks  attending  that 
mode  of  travel,  except  such  as  are  caused  or  increased  by  the 
negligence  of  tlie  railroad  company,  or  its  servants.  Grand 
R.  &  Ind.  Ed.  Co.  vs.  Boyd,  65  lud.,  526. 

§  9.  Liability  for  Baggage. — The  jury  are  instructed,  that  a 
common  carrier  of  passengers,  by  receiving  the  baggage  of  a 
traveler  who  has  engaged  his  passage,  becomes  immediately 
responsible  for  its  safe  delivery  at  the  place  of  destination,  and 
nothing  but  the  act  of  God  or  the  public  enemies  will  excuse 
a  non-delivery. 

The  court  instructs  you  that  the  term  baggage  includes  a 
reasonable  amount  of  money  in  a  trunk,  intended  for  traveling 
expenses,  and  such  articles  of  necessity  and  convenience  as  are 
usually  carried  by  passengers  for  their  personal  use,  instruc- 
tion, amusement  or  protection.  Weeks  vs.  N'.  Y.,  etc.,  R.  R. 
Co.,  16  K  Y.  Sup.  Ct.,  669  ;  Ilutchings  vs.  Western,  etc.,  R. 
R.  Co.,  25  Ga.,  63;  Dexter  vs.  Syracuse,  etc.,  Rd.  Co.,  42  N. 
Y.,  326;  Parmlee  vs.  Fischer,  22  111.,  212;  Porter  vq.  Eilde- 
hrand,  11  Penu,  St.,  129;  Hannibal,  etc.,  Rd.  Co.  vs.  Swift, 


118  CAERIEKS    OF    PASSENGERS    AND     BAGGAGE. 

12  Wallace,  2G2;  Gleason  vs.  Goodrich  T.  Co.,  32  Wis.,  85; 
Toledo^  etc. J  vs.  Ilaminoiid,  23  Ind.  379. 

The  court  instructs  you,  that  the  term  bnggage  does  not 
extend  to  money,  merchandise,  or  other  valuables  which  are 
designed  for  purposes  of  business,  and  not  lor  the  traveling 
expenses,  personal  use,  comfort,  instruction,  amusement  or 
protection  of  the  passenger.     Woods  vs.  Deoine,  13  III,  746. 

You  are  instructed,  that  while  the  implied  undertaking  of 
a  common  carrier  to  insure  the  safe  delivery  of  bacffiiire  as 
against  everything  but  the  act  of  God,  and  the  public 
enemies,  does  not  extend  to  the  contents  of  a  trunk  consisting 
of  merchandise,  money  or  other  valuables,  whicli  are  designed 
for  the  purposes  of  trade  or  business;  still  the  common  carrier, 
if  he  takes  charge  of  such  property  for  the  purpose  of  trans- 
porting, assumes  the  relation  to  it  of  an  ordinary  bailee,  and 
is  bound  to  take  such  care  of  it,  as  men  of  ordinary  care  and 
prudence  would  usually  take  of  their  own  property  under  the 
same  circumstances.     Peim.   Co.  vs.  Miller,  35  Ohio  St.,  511. 

§  10.  If  a  Trunk  Contains  Articles  of  Special  A^alue,  Carrier 
Should  be  Notified. — -The  court  instructs  the  jury,  that  a  traveler 
who  presents  to  a  carrier  of  passengers,  a  trunk  or  valise,  such 
as  is  commonly  used  for  the  transportation  of  wearing  apparel, 
represents  by  implication,  that  it  cont  lins  only  such  articles 
as  are  necessary  for  his  comfort  and  convenience  on  the  jour- 
ney, and  if  it,  in  fact,  contains  merchandise,  jewelry  or  other 
valuables,  and  the  fact  is  not  mentioned,  the  traveler  is  guilty 
of  such  a  legal  fraud  as  to  absolve  the  carrier  from  the 
extraordinary  liability  of  insurer.  Red.  Car.,  etc.,  §  77 ; 
Smith  et  al.  vs.  B.  &  M.  Ry.  Co.,  11  N.  II.,  325 ;  Magnin 
vs.  Dinsinore,  62  N,  Y.,  35. 

The  court  instructs  you,  that  a  carrier  of  passengers  is  not 
bound  to  inquire  as  to  tlie  contents  of  a  trunk,  delivered  to  it 
as  ordinary  baggage,  such  as  tiavelers  usually  carry,  even  if 
the  same  is  of  considerable  weight,  but  the  carrier  may  rely 
upon  the  representation,  arising  by  implication,  that  it  con- 
tains nothing  more  than  baggage. 

The  court  instructs  you,  that  where  a  person,  under  the 
pretense  of  having  baggage  transported,  places  in  the  hands  of 
the  agents  of  a  railroad  company,   merchandise,  jewehy  and 


CAERIEKS    OF    PASSENGERS   AND     BAGGAGE.  119 

Other  vahiables,  without  notifying  them  of  its  character  and 
value,  ho  practices  a  fi-aiid  upon  the  company,  which  will  pre- 
vent his  ]-ecovery  in  case  of  loss,  excei)t  it  occurs  through 
gross  negligence  of  the  company.  Edwd.  on  Bail.,  §  529 ; 
Mich.  Cent.  E.  R.  Co.  vs.  Carrow,  73  111.,  348 ;  WhUmore 
vs.  Steamboat,  etc.,  20  Mo.,  513;  Doyle  vs.  Klser,  6  Ind.,  242- 

§  11.     Baggage — Liability  of  Carrier   for  Terminates,  Wlien. — 

The  court  instructs  the  jury,  that  tlu  responsibility  of  a  rail- 
road company,  as  a  common  carrier,  for  the  baggage  of  a 
]iassenger,  terminates  on  the  expiration  of  a  reasonable  time 
for  the  passenger  to  come  or  send  for  the  baggage,  after  the 
arrival  of  the  train  at  the  passenger's  place  of  destination. 
After  such  reasonable  time,  the  company  may  store  the  baggage 
in  its  warehouse,  and  it  will  then  hold  it  as  a  warehouseman 
only.  Chicago,  etc.,  B.  M.,  Co.  vs.  Boyce,  73  111.,  510;  Mote 
vs.  Chicago,  etc.,  Rd.  Co.,  27  la.,  22;  Louisville,  etc.,  Rd.  Co. 
vs.  Mahn,  8  Bust.,  184;  Ross  vs.  Mo.  Rd.  Co.,  4  Mo.  App., 
582;  Angell  on  Car.,  §  114,  320. 


CHAPTEH  XIII. 
COMMISSION  MERCHANTS. 


[See  Agenci/.] 

Sec.     1.  Commission  men  are  agents. 

2.  Good  faith  required. 

3.  Degree  of  care  required. 

4.  May  conform  to  the  rules  of  the  market. 

5.  Must  conform  to  rules  and  usages. 

6.  Margins. 

7.  Factor's  liens. 

8.  Right  to  sell  without  permission. 

9.  May  not  sell,  when. 

10.  Selling  without  orders — Damages  must  be  shown. 

11.  Account  stated. 

12.  Presumed  to  conform  to  custom  and  usage. 
18.  Eeal  estate  brokers. 

BOARD  OF  TKADE  CONTKACTS. 

14.  Contracts— Illegal. 

15.  Contracts — Legal. 

§  1.  Commission  Men  are  Agents. — The  Jury  are  instructed, 
that  commission  merchants,  who  accept  consignments  of  grain 
from  country  shippers,  and  undertake  to  dispose  of  the  same 
for  such  shippers,  and  for  a  commission  to  be  paid  therefor, 
are  regarded  as  the  agents  for  such  shippers.  Slack  vs. 
Tucker,  %^  WalL  (U.  S.),  321;  Edgerton  vs.  Michels,  &Q 
Wis.,  124. 

§  2.  Good  Faith  Required. — The  jury  are  instructed  that 
the  law  requires  a  factor  or  agent  to  exercise  the  utmost  good 
faith  towards  his  principal;  and  he  has  no  right  to  realize  a 
profit  out  of  the  property  or  fund  of  his  princi]ial,  intrusted 
to  his  care  by  any  concealed  management  of  such  property,  or 
b}'  any  violations  of  his  instructions;  and  any  such  profit  that 
may  arise  in  the  management  of  his  principal's  property 
belongs  to  the  princij^al.     Baljeoek  vs.  Ohison,  25  Ind.,  75. 

(120) 


COMMISSION    MERCHANTS.  121 

You  arc  fiirtlior  instructed  that  an  agent  must  not,  in  the 
management  of  his  prineijml's  pro])erty,  ])]ace  himself  in  a 
positit)n  which  is  adverse  to  that  of  his  principal  ;  and  he  is 
not  permitted  to  avail  himself  of  any  advantage  his  position 
may  give  him  to  speculate  off  his  principal,  but  all  the  profits 
or  advantages  gained  in  the  transaction  belong  to  the  prin- 
cipal. 

§  3.  Degree  of  Care  Required. — The  Jury  are  instructed,  that 
the  law  holds  a  consignee,  in  the  conduct  of  the  business  of 
the  consignor,  to  the  same  degree  of  care  and  diligence  which 
a  prudent  man  would  exercise  in  the  management  of  his  own 
business.    Story  on  Cont.,  §  361;  Phillips  \%.Moir^  69  111.  155. 

The  jury  are  instructed,  that  when  a  shipper  sends  grain  to 
a  commission  man  to  be  sold  by  the  latter,  and  no  instructions 
are  given  as  to  the  price  to  be  obtained,  or  the  time  of  sale, 
then  the  commission  man  .may  sell  in  his  discretion,  being 
responsible  for  good  faith  and  the  exercise  of  that  degree  of 
care,  discretion  and  skill  which  is  ordinarily  possessed  and  used 
by  persons  engaged  in  the  same  business.  Cotton  vs.  Hlller^ 
52  Miss.,  7;  Field  vs.  Farrington,  10  Wall.  (U.  S.),  141; 
Rausell  vs.  Thrall^  18  Neb.,  484;  Parlddll  vs.  Inday,  15 
Wend.,  431. 

§  4.  May  Conform  to  Rules  of  the  Market. — The  court  instructs 
the  jury,  that  a  factor  or  commission  man,  while  he  cannot  be 
held  as  a  guarantor  of  the  I'esponsibility  of  persons  to  whom 
he  sells  in  the  ordinary  course  of  business,  and  in  accordance 
with  the  usages  of  the  market  where  the  sale  takes  place,  must 
nevertheless  use  all  reasonable  efforts,  and  resort  to  all  reason- 
ably available  sources  of  information  to  learn  the  pecuniary 
liability  of  the  purchaser,  and  if  he  does  not  do  so,  and  any 
loss  occurs  by  reason  thereof,  he  will  be  liable  for  such  loss. 
Foster  vs.  Waller,  75  111.,  464. 

You  are  instructed,  as  a  matter  of  law,  that  if  there  be  a 
custom  or  usage  of  long  standing,  and  generally  known  at  the 
place  to  which  property  is  consigned  for  sale,  controlling  the 
time  within  which  payments  may  be  made  upon  what  are 
known  as  cash  sales,  then  the  consignor  will  be  bound  by  the 
custom  or  usage,  whether  he  in  fact  knows  of  the  usage  or  not. 


122  COMltflSSION   MEECHANTS. 

If  you  believe,  from  the  evidence,  that  the  defendant  sold 
the  grain  in  question  for  cash  on  delivery,  without  giving  any 
credit  to  the  purchaser,  then  it  was  his  duty  to  obtain  the  pay 
for  the  grain  before  he  allowed  it  to  go  beyond  his  control, 
unless  you  further  believe,  from  the  evidence,  that  there  is  a 
custom  or  usage  of  long  standing,  uniform  and  generally 
known  among  commission  men  doing  business  on  the  board  of 
trade,  in  {Chicago),  tliat  a  sale  for  cash  means  a  credit  until 
the  next  dny,  and  that  the  defendant  sold  the  grain  in  question 
with  reference  to  such  custom.  Story  on  Cont.,  §  354;  Deshler 
vs.  Beers,  32  III,  368. 

If  you  believe,  from  the  evidence,  that  during  the  time 
covering  the  matters  in  controversy  in  this  suit,  the  plaintiffs 
were  doing  business  as  commission  men  on  the  board  of  trade, 
in  {Chicago),  and  that  the  defendant  was  accustomed  to  sliij) 
grain  to  them,  to  be  sold  and  disposed  of  by  them,  in  the  way 
of  their  business,  he  is  conclusively  presumed  to  have  intended 
that  the  plaintiffs  should  transact  such  business  accordinir  to 
the  known,  general  and  uniform  rules  and  usages  established 
for  conducting  such  business  at  that  place,  if  the  evidence 
shows  that  there  were  any  such  rules  and  usages;  and  that 
whether  the  defendant  knew  of  such  rules  and  usages  or  not 
is  immaterial;  unless  it  be  shown,  by  a  preponderance  of  the 
GNddence,  that  there  was  some  special  contract  between  the 
parties  to  the  contrary.      Cothran  v.  jElliss,  107  111.,  413. 

If  you  believe,  from  the  evidence,  that,  during  the  time  in 
question,  the  defendant  was  accustomed,  from  time  to  time, 
to  send  grain  to  the  plaintiffs,  to  be  sold  by  them  as  com- 
mission men,  doing  business  on  the  board  of  trade,  in  {Chi- 
cago), and  that  by  the  long  established,  uniform,  and  gen- 
eral custom  and  usage  of  that  business  at  that  point,  the  grain 
so  shipped  was  placed  in  elevators  and  mixed  with  other 
grain  of  the  same  kind  and  grade,  and  a  receipt  or  certificate 
issued  by  the  warehousemen  to  the  consignee,  entitling  him 
to  the  amount  of  grain  of  the  kind  and  grade  specified  in  the 
receipts;  and  if  you  further  believe,  from  the  evidence,  that 
it  was  in  accordance  with  tlie  same  usage  or  custom  for  the 
consignees  to  use  such  certificates  in  making  sales  of  grain,  in 
the  way  of  their  general  business,  without  regard  to  the  ])ar- 
ticular  grain  upon  which  the  certificates  were  issued,  then  the 


COMMISSION  MEKCHANTS.  123 

plaintiffs  would  be  justilied  in  so  using  the  receipts  received 
by  them  iii)on  receipt  of  defendant's  grain,  and  the  transfer 
of  such  receipts,  in  connection  with  grain  sold  by  them,  would 
not  of  itself  be  evidence  of  a  sale  of  grain  on  account  of  de- 
fendant, nor  of  a  sale  of  his  gi'ain. 

If  you  believe,  from  the  evidence  in  this  case,  that  at  tlie 
time  covering  the  transactions  in  question,  it  was  the  estab- 
lished, general  and  uniform  usage  and  custom  for  connnission 
men  doing  business  on  the  board  of  trade,  in  {Chica(jo\  to  use 
and  transfer  the  receipts  in  their  hands,  for  grain  de|)Osited  in 
the  elevators  in  that  city,  whenever  a  sale  was  made  by  them, 
without  regard  to  the  ])articular  person  upon  whose  shipments 
such  receipts  were  issued,  tlien  the  transfer  of  such  receipts 
would  not  alone  be  evidence  of  the  sale,  or  intended  sale,  of 
the  grain  of  the  person  upon  whose  shipments  the  receipts 
were  issued. 

§  5.  Must  Conform  to  Rules  and  Usages. — The  court  instructs 
the  jury,  that  when  a  pirincipal  employs  a  commission  man 
to  buy  (or  sell)  grain  on  the  board  of  trade  in  {^Chicago),  the 
commission  man  is  not  only  bound  to  conduct  the  transaction 
with  all  such  reasonable  and  ordinary  care  and  judgment  as  is 
usually  exercised  by  persons  engaged  in  the  same  business,  but 
he  is  also  required,  in  the  transaction  of  the  business  intrusted 
to  him,  to  conform  to  all  the  known,  uniform,  general  and 
established  rules  and  usages  existing  in  that  market,  if  any 
such  are  shown  to  exist  by  the  evidence;  and  if  he  fails  to  do 
so,  and  any  loss  results  therefrom,  he  will  have  to  bear  the 
loss.     Howe  V.  Suthei'lcmd,  39  la.,  4Si. 

§  6.  Margins.^ — If  the  jury  believe,  from  the  evidence,  that 
before  and  at  the  time  of  the  transactions  in  question,  the  de- 
fendants were  commission  men,  doing  business  on  the  board 
of  trade  in  {Chicago),  and  that  some  time  about,  etc.,  the  par- 
ties entered  into  a  contract,  whereby  it  was  agreed  that  the 
defendants  should  purchase  grain  in  {Chicago)  market  for  the 
plaintiff,  and  hold  the  same  until  ordered  by  him  to  sell;  and 
that  it  was  a  part  of  the  same  agreement  that  the  ])laintiff" 
should  place  in  the  hands  of  the  defendants  a  margin,  or  sum 
of  money,  equal  to  {fioe)  cents  per  bushel  of   the  grain  so  to 


124:  COMMISSION  MEKCHANTS. 

be  purchased;  and  that  in  case  the  price  of  such  grain  should 
fall  in  such  market,  while  the  said  contract  should  run,  that 
then  the  said  plaintiff  should  advance  to  the  defendants  addi- 
tional margins,  as  they  should  from  time  to  time  demand;  and 
if  the  jury  further  believe,  from  the  evidence,  that  pursuant 
to  that  contract,  the  defendants  did  purchase  the  grain  in 
question  for  the  plaintiff,  and  that  the  plaintiff  did  then  place 
in  the  hands  of  said  defendants  a  margin  {Jive)  cents  per  bushel 
of  said  purchase,  and  that  after  that  the  price  of  said  grain 
did  fall  in  said  market,  then  it  became  the  duty  of  the  plaintiff, 
from  time  to  time,  upon  reasonable  notice,  to  advance  to  the 
defendants  additional  margins,  as  the  same  should  be  de- 
manded by  them;  and  if  he  failed  to  do  so,  after  reasonable 
notice,  then  the  defendants  had  a  right  to  sell  such  grain;  pro- 
vided, they  exercised  good  faith  and  reasonable  discretion  in 
so  doing. 

And  if  you  believe,  from  the  evidence,  that  the  parties 
entered  into  the  contract  supposed,  and  stated  in  the  last  pre- 
ceding instruction,  and  that  the  defendants  bought  the  grain, 
as  therein  supposed;  then,  if  you  further  believe,  from  the 
evidence,  that  the  market  price  of  the  corn  afterwards  fell,  in 
said  market;  and  further,  that  the  defendants  notified  the 
])laintiti'  of  that  fact,  and  demanded  additional  margins,  and 
that  the  plaintiff  did  not,  within  a  reasonable  time  after  such 
notice  and  demand,  advance  the  margins  so  demanded,  then 
the  defendants  had  a  right  to  sell  said  corn  in  tlu^r  discretion, 
being  responsible  only  for  the  exercise  of  good  faith  in  that 
behaK.  Oo^hett  vs.  Underwood,  S3  111.,  324;  Moeller  vs.  Mc- 
Lagaii,  GO  111.,  317;  Denton  vs.  Jackson,  106  111.,  433. 

§  7.  Factor's  Lien. — The  court  instructs  the  jury,  that  a 
commission  man  has  a  lien  on  the  goods  in  his  possession,  not 
only  for  his  advances,  commissions  and  expenses,  made  and 
incurred  upon  those  particular  goods,  but  he  also  has  a  lien 
for  any  general  balance  due  to  him;  provided,  there  is  no 
special  contract  between  the  parties  waiving  such  lien. 
Schijfer  vs.  Fea<jin,  51  Ala.,  335;  Timn  et  al.  vs.  Howard, 
.57  Ga.,  410;  2  Kent  Com.,  640;  Story  on  Agency,  §  376; 
Jarvis  vs.  Rogers,  15  Mass.,  389. 


COMMISSION  MEKCIIANTS.  125 

§  8.  Riujlit  to  Sell  without  Permission. — Tlie  jury  arc  in- 
structed, that  a  commission  mcrcliant,  who  has  received  con- 
signments of  grain,  with  orders  to  hold  the  same,  has  a  lien 
thereon  for  any  and  all  advances  made  and  liabilities  incurred 
by  him  on  snch  grain;  and  when  he  has  made  advances  iipnn 
such  grain  to  more  than  its  value,  or  where  such  advances 
and  the  proper  charges  and  expenses  are  equal  to  its  then 
market  value,  and  the  commission  man  has  I'easonable  grounds 
to  believe  that  such  grain  is  in  danger  of  deterioration  in 
quality  or  depreciation  in  value,  and  the  consignor,  upon  the 
request  of  the  consignee,  neglects  or  refuses,  after  reasonable 
notice,  to  make  such  advances  good,  and  refuses  or  declines  to 
give  permission  to  the  consignee  to  sell  the  same,  then  the 
commission  merchant  has  a  right  to  sell  such  grain,  or  so  much 
thereuf  as  is  necessary  to  protect  himself  from  loss,  without 
the  orders  of  the  consignor,  and  even  contrary  thereto,  unless 
there  be  an  express  agreement  that  this  shall  not  be  done. 
Howard  vs.  iSmith,  56  Mo.,  314;  White  vs.  S?nith,  54  JST.  Y., 
522;    Weed  vs.  Adams,  37  Conn.,  378. 

You  are  instructed,  that  when  a  commission  man  makes 
advances,  or  incurs  liabilities,  in  the  discharge  of  his  duties, 
upon  aconsignment  of  goods,  he  may  sell  the  goods,  or  such 
part  thereof  as  shall  be  necessai-y  to  reimburse  himself,  for 
such  advances  and  liabilities,  including  his  own  proper  charges, 
in  the  exercise  of  a  sound  discretion,  and  in  accordance  with 
the  general  rules  and  usages  of  the  market,  if  any  such  ai-e 
proved,  and  reimburse  himself  for  all  such  advances,  liabilities 
and  charges;  provided,  the  consignor  fails  or  neglects  to 
reimburse  the  commission  man  for  such  advances  and  liabili- 
ties within  a  reasonable  time  after  being  notified  so  to  do. 
Story  on  Cont.,  357. 

§  9.  When  May  not  Sell. — The  jury  are  instructed,  that  an 
agent  or  factor,  holding  goods  for  his  principal,  has  n  >  riaht, 
without  the  authority  of  the  principal,  to  sell  such  goods, 
except  it  be  to  reimburse  himself  for  actual  advances  made  or 
liabilities  incurred,  when  he  has  no  funds  in  his  hands  belong- 
ing to  his  principal  sufficient  to  reimburse  himself  for  such 
advances  and  liabilities,  and  when  the  principal  fails  or  refuses 


126  com:viission  merchants. 

to  provide  funJi  for  such  reitnbarsemgiit  witliin  a  reason  ible 
time  after  demand  therefor;  and  if  he  does  sell  such  goods  for 
any  other  purpose,  without  the  principal's  authority,  or  while 
he  has  funds  in  his  hands  belonging  to  his  principal,  suf- 
ficient to  reimburse  himself  for  such  advances  and  liabilities, 
lie  will  render  him -elf  liable  for  all  loss  to  the  principal  occa- 
sioned by  such  sale.     Story  on  Cont.,  §  357. 

If  you  believe,  from  the  evidence,  that  the  defendant  was 
liokling  the  corn  in  question  for  the  plaintiff,  under  an  agree- 
ment made  between  the  parties  that  the  defendant  should  so 
hold  it  until  ordered  to  sell  by  the  plaintiff,  provided,  the 
plaintiff  should  keep  in  the  hands  of  the  defendant  a  sum  of 

money,  known  as  a  margin,  equal  to    at  least  ,  then  tlie 

defendant  would  have  no  right  to  sell  the  corn,  in  violation 
of  the  plaintiff's  directions  {or  vyithoat  orders  from  Jiiin),  on 
the  ground  that  the  margin  was  exhausted,  without  first  noti- 
fying tlie  plaintiff  that  it  was  so  exhausted,  and  giving  him 
a  reasonable  time  within  which  to  put  up  the  margin  so  agreed 
upon, 

§    10.      Sellin;*    witlimit    Orders — Damage    Must    be    SIiowti. — 

Though  the  jury  may  find  that  the  defendants  were  not 
autliorized  to  sell  the  grain  in  question  at  the  time  they  did 
sell  it,  still,  before  tlie  plaintiff  would  be  entitled  to  recover 
on  that  account,  it  must  appear,  by  a  )">re]:)onderance  of  evi- 
dence, that  he  has  suffered  some  damage  thereby,  and  the 
jury  can  only  allow  for  that  violation  of  duty,  if  it  be  a  viola- 
tion, such  an  amount  of  damages  as  the  jiiry  believe,  from  the 
evidence,  tlie  plaintiff  has  sustained  as  the  direct  consequences 
thereof. 

§  11.  Account  Stated. — If  the  jury  believe,  from  the  evi- 
dence, that  the  plaintiffs  were  commission  men,  doing  busi- 
ness in  Chicago,  and,  in  the  Avay  of  their  business,  were  from 
time  to  time  receiving  grain,  sent  to  them  from  the  defendant, 
to  be  sold  for  him  by  them,  and  were  also,  from  time  to  time, 
nr.d<iiig  |iayments  to  defendant  on  account  of  such  sales,  or 
advancing  money  to  liini  in  connection  with  said  business; 
and  further,  that  the  plaintiffs,  from  time  to  time,  sent  to  the 
defendant,  statements  of  the  accounts  between  them,  which 


COMMISSION  MKKCIIANTS.  127 

were  received  by  defendant,  and  that  he  did  not,  within  a 
reasonable  time,  object  to  said  statements  and  notify  the 
plaintiffs  of  said  objection,  then,  as  a  matter  of  law,  the  jury 
should  regard  the  defendant  as  admitting  that  the  accounts 
were  correctly  stated,  and  he  will  be  bound  by  them,  unless  it 
is  shown,  by  a  preponderance  of  the  evidence,  that  there  was 
some  error  or  mistake  in  the  accounts  as  rendered  to  him,  of 
which  he  was  not  informed  at  the  time  he  so  consented  to 
them. 

§   12.     Factors  Presumed  to  Conform  to  Custom  and  Usa:2:e. — 

That,  when  one  person  employs  another  to  transact  for  him  a 
particular  business,  at  a  particular  place  or  market,  tlie  em- 
ployer is  presumed  to  have  given  to  the  other  authority  to 
act,  in  accordance  with  the  rules  and  usages  there  established, 
and  generally  known  and  adopted,  though  the  principal  may 
be  ignorant  of  them. 

A  person  who  deals  in  a  particular  market  must  be  taken 
to  deal  according  to  the  known,  general  and  uniform  rules 
and  usages  of  that  market,  and  he  who  employs  another  to  act 
for  him  at  a  particular  place  or  market,  in  the  absence  of  a 
particular  contract  to  the  contrary,  must  be  taken  as  intending 
that  the  business  to  be  done  will  be  done  according  to  the 
rules  and  usages  of  that  place  or  market,  whether  he,  in  fact, 
knew  of  such  rules  and  usages  or  not.  Bailey  vs.  Bensley  et 
al.,  87  111.,  556. 

§  13.  Real  Estate  Brokers. — If  the  jury  believe,  from  the 
evidence,  that  the  defendant  solicited  the  plaintiff  to  use  his 
efforts  to  effect  a  sale  of  the  premises  in  question,  and  told 
him  he  would  pay  him  (liberally  for  the  same),  and  that  rely- 
ing upon  that  promise  the  plaintiff  did  use  his  efforts  in  that 
behalf,  and  did  perform  services  in  endeavoring  to  effect  such 
sale,  then  the  defendant  is  liable  for  what  such  services  were 
reasonably  worth.  McGill  vs.  Prcssley,  62  lud.,  193;  Hin- 
ton  vs.  Coleman,  45  Wis.,  165. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  really 
performed  services  for  the  defendant  in  endeavor  to  effect  a 
sale  of  the  premises  in  question  in  the  exi)ectation  of  being 
paid  therefor  and  that  such  services  were  of  any  value  to  the 


12S  COMIMISSION  MEE CHANTS, 

defendant,  and  fnrtlier  tliat  tlie  defendant  knew  at  the  time 
that  the  plaintiff  was  performing  such  services  with  tlie  ex- 
pectation of  being  paid  tlierefor,  then  the  plaintiff  is  entitled 
to  recover  what  such  services  were  reasonably  worth,  although 
you  may  iind  from  the  evidence  that  there  was  no  express 
promise  to  pay  and  no  price  agreed  upon.  McGill  vs.  Press- 
ley,  02  Ind.,  193. 

You  are  instructed  that  the  contract  between  defendant  and 
the  said  B.  introduced  in  evidence  in  this  case  is  a  binding 
contract  between  the  parties  thereto,  and  if  you  believe  from 
the  evidence  that  the  defendant  agreed  with  the  plaintiff  that 
if  he  would  find  a  purchaser  for  or  make  a  sale  of  said  prop- 
erty defendant  would  pay  him,  etc.,  and  that  in  pursuance  of 
that  agreement  and  promise  the  plaintiff  by  his  efforts  and 
services  procured  tlie  making  of  said  conti-act  of  sale  between 
the  said  defendant  and  B.,  then  the  plaintiff  is  entitled  to  re- 
cover no  matter  whether  the  said  B.  afterwards  refused  to 
carry  out  said  contract  of  sale  or  not.  Love  et  at.  vs.  Miller 
et  al.,  53  Ind.,  294;  Bees  vs.  Spruance,  45  111.,  308;  M'uldlcton 
vs.  Finda,  25  Cal.,  76;  Glendworth  vs.  Luther.,  21  Barb.,  145; 
Rice  vs.  Almjo,  107  Mass.,  550. 

If  you  believe,  from  the  evidence,  that  the  defendant  left  a 
description  of  the  proi)erty  with  the  plaintiff  as  real  estate 
agent  for  the  ]nirpose  of  having  him  find  a  purchaser  for  the 
property  under  an  agreement  to  pay  him,  etc.,  and  that  no 
time  was  fixed  within  which  this  was  to  be  done,  then  the  law 
would  imply  that  it  was  to  be  done  within  a  reasonable  time 
thereafter,  and  if  you  further  believe,  from  the  evidence,  that 
the  plaintiff,  relying  on  such  promise  and  agreement,  did  within 
a  reasonable  time  find  a  purchaser  at  the  ])rice  named,  then 
the  plaintiff  is  entitled  to  his  ])ay  and  commissions,  although 
you  may  further  find  from  the  evidence  that  the  defendant 
liad  ah-eady  sold  the  property  before  the  ])laintiff  found  his 
purcliaser;  provided  you  further  believe  from  the  evidence 
that  the  plaintiff  did  not  know  and  had  liad  no  notice  of  the 
fact  that  the  defendant  had  effected  a  sale  of  the  property  at 
the  time  the  j^lainiiff  found  his  i)urchaser.  Lane  vs.  Albright., 
49  Ind.,  275. 

If  you  believe  from  the  evidence  that  the  defendant  re- 
quested the  plaintiff  to  assist  him  in  finding  a  purchaser  for, 


COMMISSION  MERCHANTS.  129 

or  in  making  sale  of  property  in  question,  and  tliat  acting  on 
that  request  tlio  plaintiff  introduced  to  defendant  as  the  pur- 
chaser one  A.  B.,  and  that  the  said  A.  B.  did  afterwards  pur- 
chase said  property,  then  the  plaintiff  is  entitled  to  a  reason- 
able compensation  for  his  services  although  the  contract  of 
sale  was  actually  negotiated  and  eff'ected  by  the  defendant 
himself.     Arringtoii  vs.  Cai'ij^  5  Bax.  (Tenn.),  501). 

§  14.  Contracts,  Illegal. — The  jury  are  instructed,  that  a 
contract  for  the  sale  and  future  delivery  of  grain,  by  which  the 
seller  has  the  privilege  of  delivering  or  not  delivering,  and  the 
buyer  the  ])rivilege  of  calling  or  not  calling  for  the  grain,  just 
as  they  choose,  and  which,  on  its  maturity,  is  to  be  tilled  by 
adjusting  the  differences  in  the  market  vakie,  is  an  option 
contract,  in  the  nature  of  a  gambling  transaction  prohibited  by 
law.  Pichering  YS.  Cease, 1^  111.,  328;  Iii  re  Green,  7  Biss., 
338;  Jludolfvs.   Winters,  7  Neb.,  125. 

A  dealer  on  the  board  of  trade  has  a  right  to  sell  and 
agi-ee  to  deliver  at  some  future  time  property  which  he  does 
not  own  at  the  time  but  which  he  expects  to  go  into  the 
market  and  buy,  but  an  agreement  for  a  sale  and  future  de- 
livery of  grain  is  a  gambling  contract  and  illegal  if  it  is  the 
understanding  and  intention  of  both  the  parties  at  the  time 
that  there  is  to  be  no  actual  sale,  purchase,  receipt  or  deliv- 
ery of  the  grain,  at  the  time  fixed  for  the  delivery  thereof 
but  only  that  the  parties  shall  only  then  settle  and  the 
purchaser  receive  or  pay  the  difference  between  the  agreed 
price  and  the  market  price  according  as  the  market  price  is 
less  or  greater  than  the  agreed  price.  Gregory  vs.  Weridall, 
40  Mich.,  432;  Eamsey  vs.  Berry,  65  Mo.,  574. 

One  of  the  questions  to  be  passed  upon  by  the  jury,  is  this: 
was  there  an  actual  hoiia  fide  contract  between  the  parties,  for 
a  sale  of  corn  to  be  delivered  by  the  seller  and  received  by  the 
purchaser,  or  was  it  understood  that  no  grain  should  be  actually 
purchased  or  delivered,  but  only  that  a  settlement  should  be 
made  upon  the  basis  of  the  market  price  at  the  time  men- 
tioned for  delivery.  KirTxpatrick  vs.  Bousell,  72  Penn.  St. 
155. 

If  the  jury  believe,  from  the  evidence  in  this  case,  that  the 
deals  or  contracts  showm  in  evidence  were  a  mere  contrivance  for 
9 


130  COMMISSION  MERCHANTS. 

enabling  the  parties  thereto  to  hazard  the  deposit  of  money 
on  the  fl actuations  of  the  market  vahie  of  Xo.  2  spring  wheat, 
and  were  not,  in  fact,  real  contracts  for  the  sale  of  wheat  by 
the  parties  thereto,  then  the  jury  are  instructed,  as  a  matter  of 
law,  that  such  deals  or  contracts  were  illegal  and  void,  and  would 
be  binJaig  on  neither  party.  Lowry  vs.  DlLlman,  59  Wis., 
197;  Barnard  vs.  Bachaus,  52  Wis.,  593. 

That  by  the  conti-act  for  the  sale  of  the  wheat  in  question 
neither  party  intended  to  deliver  or  receive  any  wheat  under 
the  contract,  but  that  the  parties  expected  thereby  to  wager 
the  margin  deposited,  and  that  either  party  had  the  option  to 
annul  the  contract  at  any  time  by  refusing  to  put  up  additional 
margins,  and  that,  in  fact,  the  contract  was  a  mere  devise  for 
carrying  out  a  wager  on  the  market  value  of  the  wheat  and  was 
not  a  hona  fide  sale  or  agreement  to  sell  for  future  delivery 
then  the  jury  are  instructed  that  such  contract  is  illegal  and 
void.  Toiiillii  vs.  Calleii^  69  la.,  229;  First  N'at.  B.  vs. 
Oskaloosa  P.  Co.^  '6^  la.,  41. 

Although  the  jury  may  believe,  from  the  evidence,  that  at 
or  about  the  time  stated,  the  plaintiff  and  defendant  entered 
into  a  contract  by  which  it  was  nominally  and  in  terms  agreed 
between  them,  etc.,  still,  if  the  jury  further  believe  from  the 
evidence  that  at  the  time  of  making  said  agreetnant,  neither 
of  the  jxirties  contemplated  an  actual  sale  and  delivery  of 
said  corn,  but  that  it  was  understood  between  them  that  the 
said  deal  was  to  be  settled  by  the  parties  by  the  payment  from 
one  to  the  other  of  the  difference  between  the  agreed  price 
and  the  market  price  on  the  day  of  settlement,  then  such  a 
contract  is  in  law  regarded  as  a  gambling  transaction  and  is 
illegal  and  void,  and  neither  party  can  sustain  an  action  for  a 
breach  of  such  contract.      Teriney  vs.  I'oote,  4  111.  App.,  594. 

§  15.  Contracts  Legal. — If  the  jury  believe,  from  the  evi- 
dence, that  the  defendant  employed  the  plaintiff  to  act  for 
him  in  the  capacity  of  broker  or  commission  man  to  purchase 
and  sell  grain  for  him  on  the  board  of  trade,  and  that,  acting 
under  that  employment,  the  plaintiff  did  in  good  faith  con- 
tract to   purchase  for  the  defendant  2,000  bushels  of  ISTo.  2 

corn,  to  be  delivered  during  the  then  next  month  of  , 

then  the  fact,  if  proved,  tliat  the  defendant  intended  to  resell 


COMMISSION  MERCHANTS.  131 

tlie  same  corn  before  the  time  of  its  delivery  under  sucli  con- 
tract of  purchase,  would  not  alone  render  the  transaction  a 
gambling  contract  or  in  any  manner  invalidate  it.  Sawyer  vs. 
Tagrjarl,  14  Bush  (Ky.),  T27. 

The  jury  are  further  instructed,  that  if  one  of  the  parties 
to  a  contract  for  the  future  sale  and  delivery  of  grain  con- 
templates and  intends  an  actual  sale  and  delivery,  then  the 
transaction  would  be  legal  and  binding,  irrespective  of  any 
illegal  purpose  entertained  by  the  other  party;  a  contract 
cannot  be  a  gambling  contract  unless  both  parties  concur  in 
the  illegal  intent.  Gregory  vs.  Wendall,  40  Mich.,  432; 
Story  vs.  Solomon^  71  JST.  Y.,  420;  ^YaU  vs.  Sehieider,  59 
Wis.,  352. 

The  jury  are  instructed  as  a  rule  of  law  that  when  a  cus- 
tomer orders  commission  merchants  to  make  contracts  for  the 
purchase  and  future  delivery  of  (lard)  or  other  commodities 
for  him,  and  the  commission  merchants  in  pursuance  of  such 
order  do  enter  into  valid  contracts  for  the  delivery  at  a  future 
time  of  the  commodities  so  ordered,  the  law  implies  a  conti-act 
on  the  part  of  the  customer  to  furnish  to  the  coinmission 
merchants  sufficient  funds  to  pay  for  the  commodities  so  pur- 
chased when  delivered ;  and  the  customer  must  also  do  and 
perform  with  and  loi  his  connnission  merchants  and  for  their 
protection,  whatever  the  law  or  the  general  and  uniform 
custom  and  usage  of  the  place  where  the  commission  mer- 
chants are  ordered  to  make  the  purchase  requires,  provided 
the  jury  believe,  from  the  evidence,  that  there  were  any  such 
customs  and  usage  at  that  place,  and  if  the  commission  mer- 
chants have  made  any  such  contracts  as  were  ordered  by  the 
customers  and  they  have  been  required  to  pay  out  money  on 
account  of  such  contracts  they  can  recover  of  their  customer, 
at  law,  for  the  money  so  paid  out ;  provided  the  money  so 
paid  has  been  paid  in  accordance  with  the  usage  and  customs 
of  the  market  where  such  contract  was  made. 

If' the  jury  believe,  from  the  evidence,  that  tlie  plaintiffs,  a/ 
commission  merchants,  did,  at  the  time  alleged,  enter  int( 
contracts  upon  the  board  of  trade  in  C,  for  the  purchase  of 
etc.,  upon  the  order  of  the  defendant  and  as  ordered  by  him. 
and  that  by  the  (rules  of  the  board),  or  by  the  general  and 
uniform  custom  and  usage  prevailing  among  dealers  on  the 


132  COMMISSION  MERCHANTS. 

board,  tlie  plaintiffs  were  required  to  furnisli  a  certain  sum 
of  money  as  margins  upon  such  contracts,  then  and  in  that 
case  it  became  the  duty  of  the  defendant  to  furnish  to  the 
plaintiffs  a  reasonable  sum  a^  such  margins,  when  called  upon 
6D  to  do.  And  if  the  jury  further  believe  from  the  evidence 
that  the  plaintiffs  did  enter  into  such  contracts,  as  aforesaid, 
upon  said  board  and  upon  the  order  of  the  defendant,  and 
were  required  by  the  (rules)  or  customs  and  usage  afore- 
said to  put  up  margins,  and  that  they  called  upon  the  defend- 
ant for  a  reasonable  sum  of  money  as  such  margins,  and  that 
the  defendant  when  so  called  ujion  neglected  or  refused,  or 
was  unable  to  furnish  the  same  within  a  reasonable  time,  then 
the  plaintiffs  had  the  right  to  close  out  the  contracts  so  made 
by  them,  and  thereby  determine  the  loss,  if  any,  sustained  by 
them  bj'  reason  of  such  contracts,  and  call  upon  the  defend- 
ants to  make  good  such  loss;  provided  the  jury  believe,  from 
the  evidence,  there  was  no  special  contract  or  arrangement 
between  the  parties,  varying  these  rules  or  usagos  and  cus- 
toms. Denton  vs.  'fachson^  106  111.,  433;  GorVU  vs.  Under- 
wood, S3  111.,  324;  Miller  vs.  McLagan,  60  111.,  317. 

If  the  jury  believe,  from  the  evidence,  that  some  time  on 
and  about,  etc.,  the  plaintiff  and  the  defendant  entered  into  a 
contract,  whereby  it  was  in  good  faith  mutually  agreed  be- 
tween them  that  defendant  should  sell  to  the  plaintiff'  25,000 
bushels  No.  2  corn,  at  43  cents  per  bushel,  deliverable  to 
the  plaintiff"  at  any  time  during  the  month  of  (November) 
following,  at  the  option  of  the  defendant,  the  plaintiff  to  pay 
for  tiie  same  at  the  jirice  of  43  cents  ])er  bushel  on  delivery, 
tlien  such  contract  would  be  valid  and  binding  upon  the  par- 
ties.    Ibid. 

If  the  jury  believe,  from  the  evidence,  that  on  and  about,  etc. 
the  parties  in  good  faith  entered  into  a  contract  whereby  it 
was  mutually  agreed  between  them  that  defendant  should  sell 
to  the  plaintiff  25,000  bushels  of  No.  2  corn  at  43  cents  per 
bushel,  deliverable  to  the  plaintiff'  at  any  time  during  the 
month  of,  etc.,  at  defendant's  election,  the  plaintiff  to  pay  for 
the  same  at  the  ))rice  aforesaid  on  delivery — and  if  the  jury 
further  believe  from  the  evidence  that  such  contract  was  made 
between  the  j-arties  as  members  of  the  board  of  trade  at,  etc., 
and  under  the  rules  of  said  board,  and  that  it  was  one  of  the 


COIUMISSION  MEECHANTS.  133 

rules  of  said  board  or  that  there  was  any  general  and  uniform 
custom  or  usage  among  dealers  on  said  board  that  when  such 
contracts  had  been  made  and  the  price  of  the  grain  should  ad- 
vance before  the  time  of  delivery  of  the  same  that  then  the 
purchaser  had  the  right  to  call  upon  the  seller  to  put  up  or  de- 
posit a  sum  of  monej''  as  margins  reasonably  sufficient  to  insure 
the  performance  of  the  contract  by  the  seller  and  that  in  case 
of  his  failure  so  to  do  that  the  purchaser  should  have  the  right 
to  go  upon  the  board  and  purchase  an  equal  amount  of  grain 
at  the  then  market  price  for  account  of  the  seller,  charging  him 
with  the  difference  between  the  contract  price  and  such  mar- 
ket price — and  if  the  jury  further  believe  from  the  evidence 
that  on  or  about,  etc.,  the  market  price  of  said  corn  on  said 
board  of  trade  did  advance  to  about  40  cents  per  bushel 
and  that  plaintiff  then  requested  defendant  to  put  up  such 
margins,  and  defendant  neglected  and  refused  to  do  so 
within  a  reasonable  time  after  such  demand,  then  the  plaintiff' 
had  a  right  to  go  into  the  market  and  purchase  for  the  account 
of  the  defendant  25,000  bushels  of  No.  2  corn  to  be  delivered, 
etc.,  at  the  then  market  price.  Follansbee  vs.  Adams,  86  111.,  13. 

And  if  the  jury  further  believe  from  the  evidence  that  on, 
etc.,  the  plaintiff  did  in  good  faith  purchase  25,000  bushels  of 
iSTo.  2  corn  at  49  cents  per  bushel  for  the  account  of  the  said 
defendant  to  be  delivered,  etc.,  and  that  49  cents  was  then 
the  fair  market  price  thereof,  then  the  plaintiff  is  entitled  to 
recover  from  the  defendant  the  difference  between  the  con- 
tract price  and  the  market  price  so  paid. 

If  the  jury  believe  from  the  evidence  that  some  time  about, 
etc.,  the  parties  entered  into  a  contract  (as  in  the  last  preceding 
instruction)  and  that  such  contract  was  made  between  the 
jiarties  as  members  of  the  board  of  trade  at,  etc.,  and  under 
the  rules  of  said  board  of  trade,  then  the  court  instructs  you 
that  under  the  rules  of  said  board  introduced  in  evidence  in 
this  suit,  in  case  of  an  advance  in  the  market  price  of  said 
corn  before  the  delivery  thereof,  the  plaintiff  would  have  the 
right  to  call  upon  the  defendant  to  put  up  or  deposit  a  sum  of 
money  as  margins  reasonably  sufficient  to  cover  such  advance 
in  price,  and  in  the  event  of  the  defendant  refusing  to  put  up 
such  margins  the  plaintiff  would  have  the  right  to  go  upon 
the  board  and  purchase  the  same  quantity  of  No.  2  corn  at  the 


134  COMMISSION  MEKCHANTS. 

then  market  price  for  llie  account  of  the  defendant  and  charge 
hhii  with  the  difference  between  the  contract  price  and  tlie 
market  price  so  paid,  ^\■hether  in  this  case  the  price  of  corn 
did  advance  as  alleged  bcfoj-e  delivery  and  whether  the  plaintiff 
did  demand  such  margins  and  whether  the  defendant  refused 
to  put  such  margins  and  whether  the  plaintiff  did  in  good 
faith  purchase  the  25,0U0  bushels  of  corn  for  the  account  of 
the  defendant  and  pay  therefor — 49  cents  a  bushel, — are  all 
questions  of  fact  to  be  determined  by  the  jury  from  a  prepon- 
derance of  the  evidence  in  the  case. 

If  the  jury  believe,  from  the  evidence,  that  there  was  a  con- 
tract between  plaintiff  and  defendant,  which  fixed  the  amount 
of  margins  which  plaintiff  should  keep  good,  then  they  are 
instructed  as  a  matter  of  law,  that  any  custom  of  the  board  of 
trade,  as  to  the  amount  of  margins  usual  or  reasonable,  is  imma- 
terial in  this  case,  for  the  contract  will  govern  as  to  that  matter. 

If  tlie  jury  find,  from  the  evidence,  that  there  was  a  con- 
tract between  the  parties  as  to  the  amount  of  margins  which 
plaintiff  should  put  up  for  the  protection  of  the  defendants 
in  their  deals  for  him,  and  that  the  plaintiff  did  not  keep  up 
the  margin  which  he  had  contracted  to  do,  and  that  den)and 
therefor  was  made  by  the  defendants,  and  that  upon  such 
demand  the  plaintiff  neglected  and  refused  to  put  such  margins 
within  a  reasonable  time  after  such  demand,  then  the  defend- 
ants would  have  a  right  to  close  out  the  plaintiff's  deals  in 
accordance  with  the  usages  and  customs  prevailing  among 
dealers  on  the  board  of  trade,  provided  the  jury  believe,  from 
the  evidence,  that  there  was,  at  the  time,  any  general  uniform 
and  well  known  usage  or  custom  governing  such  matters 
among  dealers  on  the  board  of  trade.  Denton  vs.  Jackson, 
lOG  111.,  433. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  in 
question  a  general  and  uniform  custom  and  usage  obtained 
among  commission  merchants  doing  business  on  the  board  of 
trade  at,  etc.,  to  the  purport  and  effect,  that  when  one  com- 
mission merchant  upon  the  order  of  a  customer  sold  to  another 
commission  merchant  a  quantity  of  any  commodity  for  future 
delivery  and  it  afterwards  occurred  before  the  maturity  of  the 
contract  that  the  first  commission  merchant  received  from 
another  customer  an  order  to  purchase  the  same,  or  a  larger 


COMMISSION  MERCHANTS.  ]  35 

quantity  of  the  same  commodity  for  the  same  future  delivery, 
and  he  executed  this  second  order  by  making  a  purchase  from 
the  same  commission  merchant  to  M'hom  lie  had  made  the  sale 
in  the  other  case,  that  then  and  in  such  case,  the  two  commission 
merchants  would  meet  together  and  exchange  or  cancel  both  the 
contracts  as  between  themselves,  adjusting  the  differences,  if 
any,  in  the  prices  between  the  two  contracts  and  restoring  the 
margins,  if  any  have  been  put  up,  and  that  from  that  time 
forth  the  first  commission  merchant  should  liold  such  contract 
of  purcliase  for  the  benefit  of  the  customer  for  whom  he  had 
sold  in  the  first  instance,  so  that  the  commodity  of  the  selling 
customer  miglit,  when  delivered,  be  turned  in  on  the  order  or 
contract  of  the  purchasing  customer,  and  that  in  the  meantime 
the  commission  mercliant  guaranteed  to  each  of  his  customers 
the  performance  of  the  contract  as  originally  made  on  his  be- 
half, then  tlie  court  instructs  you  that  these  customs  and  usages 
are  founded  in  commercial  convenience  and  are  not  in  contra- 
vention of  law  but  are  binding  on  the  parties. 

The  jury  are  instructed  that  by  the  laws  of  this  State,  ware- 
house receipts  are  assignable  by  indorsement  and  the  delivery 
of  a  recei])t  properly  indorsed  is  equivalent  to  a  delivery  of 
the  grain  called  for  by  the  receipt  and  a  tender  or  offer  of  a 
warehouse  receipt  properly  indorsed  is  equivalent  to  a  tender 
of  the  grain  called  for  by  the  receipt.  Gregory  vs.  Wendall^ 
40  Mich.,  432;  Davis  vs.  Russell,  52  Cal.,  611. 


CHAPTER  XIV. 
COXDEM]S"ATION  OF  LAND— EMINENT  DOMAIN. 


Sec.     1.  Measure  of  damages. 

2.  Compensation  for  land  taken  irrespective  of  benefits. 

,    3.  Damages  not  allowed  for  part  not  taken,  when. 

4.  Compensation  covers  what  injuries. 

5.  Appropriation  of  streets. 

Note. — Concerning  the  amount  of  damaees  or  the  principles  upon  which 
compensation  is  to  be  measured  to  the  owner  of  property  taken  for  public 
use  there  are  no  fixed  rules  embracing  the  whole  subject  universallj'  appli- 
cable throughout  the  different  states.  In  determining  the  quantum  of  dam- 
age, regard  must  be  had  to  anj'  constitutional  or  statutory  provisions  relat- 
ing to  the  subject  and  also  to  the  previous  course  of  decisions  in  which  those 
provisions  have  not  unfn  quently  originated.  In  states  where  the  subject 
is  not  expressly  regulated  by  positive  law  the  books  abound  in  cases  which 
cannot  be  reconciled  respecting  what  is  and  what  is  not  proper  to  be  taken 
into  consideration  in  the  way  of  benefits  on  one  hand  or  of  injuries  on  the 
other.     2  Dillon  on  Munic.  Corp.,  §  486. 

§  1.  Measure  of  Damages.- — Tlie  court  instructs  the  jury  that 
it  is  their  dut}'  in  this  case  to  ascertain  from  the  evidence  the 
just  compensation  to  be  made  to  the  several  claimants  for  the 
])roperty  to  be  taken  or  damaged  by  the  proposed  improve- 
ment. 

Just  compensation  means  the  payment  of  such  a  sum  of 
money  to  the  owner  of  the  property  proposed  to  be  taken  or 
damaged  as  will  make  him  whole,  so  that  upon  the  receipt  by 
liim  of  the  com]  ensation  and  damage  awarded  he  will  not  be 
any  poorer  by  reason  of  his  property  being  so  taken  or  dam- 
aged. Bigeiowx&.  W.  W.  Bd.  Cb.,  27  Wis.,  4TS;  1  Eedlld. 
on  Ey.,  261. 

In  estimating  the  compensation  to  be  paid  for  the  property 
to  be  taken,  the  jury  should  exclude  from  their  minds  all  con- 
sideration of  possible  benefits,  if  any,  to  accrue  from  the  im- 
provement to  the  lots  or  parts  of  lots  not  proiDosed  to  be 
taken.     Ihj.  vs.  Gilson,  8  Watts,  243. 

You  are  instructed  that  the  measure  of  compensation  to  be 

(136) 


CONDEMNATION   OF    LAND.  137 

awarded  to  tlic  owner  of  the  land  sought  to  be  condemned  in 
this  proceeding  is  the  vahie  of  the  land  as  a  part  of  the  lot  to 
which  it  belongs*  and  in  determining  such  value  the  jury  are 
instructed  not  to  take  into  consideration  the  effect  which  the 
proposed  improvement  will  have  either  upon  the  whole  lot, 
the  part  to  be  taken  or  the  part  that  will  remain  after  the  im- 
provement is  made,  the  value  of  the  portion  which  is  pro- 
posed to  be  taken  should  be  determined  wholly  independently 
of  the  jjurpose  for  which  it  is  to  be  taken. 

§  2.  Compensation  to  be  Made  for  Land  Taken  Irrespective  of 
Benefits. — In  assessing  the  compensation  to  be  made  to  the  own- 
ers of  the  land  the  jury  should  assess  the  value  of  the  land 
taken  at  what  they  believe,  from  the  evidence,  it  is  worth,  irre- 
spective of  any  benefits  which  may  or  may  not  accrue  to  the 
remainder  of  the  tract — and  also  any  damage  which  the  jur}"- 
believe,  fi'om  the  evidence,  will  result  to  the  owner  by  reason 
of  the  diminished  value  of  the  remainder  of  the  tract,  if  any- 
thing, in  consequence  of  the  appropriation  of  the  land  taken 
(over  and  above  special  benefits  when  proper). 

In  ascertaining  these  amounts  you  are  to  take  into  considera- 
tion not  only  the  purposes  to  which  the  land  is  or  has  been 
applied  but  any  other  beneficial  purpose  to  which  the  jury  can 
see  from  the  evidence  it  might  reasonably  be  applied,  and 
which  would  affect  the  amount  of  compensation  or  damages. 
Railway  Co.  vs.  Longworth,  30  Ohio  St.,  108. 

You  are  instructed,  as  a  matter  of  law,  that  in  ascertaining 
the  just  compensation  to  be  made  to  the  owners  of  the  several 
tracts  of  land  proposed  to  be  taken,  no  benefit  or  advantage 
which  may  accrue  to  lands  or  property  not  taken,  should  be  set 
off  or  deducted  from  the  compensation  coming  to  the  owner 
on  account  of  the  value  of  the  land  which  is  to  be  taken. 

§.  3.     Damages  not  Allowed  for  Part  not  Taken,  When. — If   you 

believe,  from  the  evidence,  that  the  remainder  of  any  lot  or 
parcel  of  land,  part  of  which  is  ])ro posed  to  be  taken  for,  etc., 
will  be  specially  benefited  by  the  improvement,  that  is,  that 
it  will  receive  benefits  or  advantages  which  do  not  accrue  to 
other  property  in  the  neighborhood,  and  that  these  special 
benefits  will  increase  its  value  beyond  its  value  as  a  part  of  the 


13S  EMINENT     DOMAIN. 

whole  Jot  before  any  part  was  taken,  then  yon  should  find  that 
the  remainder  of  the  property,  or  the  part  not  taken,  will  not 
be  damaged  by  the  contemplated  improvement. 

If  you  believe,  from  the  evidence,  with  regard  to  any  lot  or 
parcel  of  land  m  question,  that  the  jnst  compensation  which  is 
to  be  awarded  for  the  ]mrt  proposed  to  be  taken,  when  added 
to  the  value  of  the  remainder  of  the  lot  not  taken,  will  be 
equal  to  the  value  of  the  whole  lot  or  parcel  of  land  before 
the  taking,  then  you  should  not  award  any  damages  to  that 
l^ortion  or  parcel  of  the  land  not  taken. 

§  4,  Compensation  Covers  Wliat  Injuries. — In  cases  of  this 
kind  damages  are  assessed  and  compensation  made  once  for 
all,  and  this  proceeding  will  forever  bar  the  claimant  and  all 
persons  holding  the  property  under  him  from  any  future 
claim  for  damages  resulting  from  the  building  and  operation 
of  the  contemplated  road  in  an  ordinary  and  careful  manner. 
The  compensation  is,  therefore,  to  be  determined  according  to 
the  full  measure  of  the  rights  acquired  by  the  corporation, 
and  not  according  to  the  mode  in  which  they  propose  to 
exercise  those  rights  in  the  first  instance.  The  damages  to  be 
assessed  include  all  the  injury  to  the  remaining  portion  of  the 
land  by  cutting  o2  access  to  or  egress  from  the  different 
parts  of  the  farm,  or  in  rendering  it  inconvenient  for  use  by 
cutting  it  up  into  irregular  pieces  or  in  any  mannei  rendering 
it  less  suitable  for  convenient  and  profitable  occupation  and 
use,  or  for  cutting  it  up  into  lots,  provided  the  jury  believe 
from  the  evidence  that  the  construction  and  operation  of  the 
contemplated  road  across  the  claimant's  farm  will  injuriously 
affect  its  value  in  any  of  these  modes.  Drury  vs.  Midlana 
Rd.  Co.,  127  Mass.,  571;  C.  <&  I.  Ed.  Co.  vs.  IlopJdns,  90 
111.,  316;  1  Redfld.  on  Ry.,  2S8. 

If  you  believe,  from  the  evidence,  that  the  lands  of  the 
claimant  adjoining  tlu  proposed  railroad  track,  will  be  less  valu- 
able because  of  their  exposure  to  fire,  or  for  the  reason  that  the 
railroad  will  cut  the  lands  into  irregular  fields,  or  will  render 
access  to  the  different  portions  of  the  lands  more  inconvenient 
or  dangerous,  then,  these  are  all  matters  which  may  be  taken 
into  account  by  you  in  estimating  the  claimant's  damages. 
You  are  not  to  fix  any  definite  estimate   of  the   amount  of 


CONDEMNATION    OF    LAND.  139 

damages  ansiiig  from  these  several  sources.  The  true  ques- 
tion to  be  determined  is,  what  is  the  market  value  of  the 
property  as  a  whole,  without  the  railroad,  and  what  will  be 
its  market  value  after  the  road  is  built  and  in  operation,  mak- 
ing no  allowance  for  any  general  benefits  which  the  property 
may  derive  from  the  building  of  the  road,  and  which  it  will 
share  in  common  with  the  other  property  generally  in  the 
vicinity.  The  value  of  the  property  taken  and  the  deprecia- 
tion in  the  market  value  of  the  remainder,  if  any,  is  the  com- 
pensation to  which  claimant  is  entitled.  TJtica  li.  H.  Co.  in 
re,  5G  Barb.,  456;  Snyder  vs.  Railroad  Co.,  25  Wis.,  60. 

In  determining  whether  the  property  in  question  will  be 
injuriously  affected  by  the  building  and  operation  of  the  rail- 
road, the  jury  may  consider  whether  the  pi'operty  is  adapted 
to  business  purposes,  or  only  useful  as  residence  property;  but 
you  are  only  to  take  these  matters  into  consideration  for  the 
purpose  of  determining  whether  the  value  of  the  pro])erty 
will  be  depreciated,  and  the  extent  of  such  depreciation  by  the 
building  and  operation  of  said  railroad  as  contemplated. 

Tou  are  further  instructed,  that  in  no  event  must  the  dam- 
ages exceed  the  sum  which  would  be  obtained  by  determining 
the  difference  between  the  actual  value  of  the  property  in 
question  with  the  railroad  constructed  and  operated  in  the 
manner  contemplated,  and  what  that  value  vvould  be,  were  the 
railroad  not  built. 

You  are  instructed  that  they  should  not  take  as  a  separate 
and  distinct  basis  for  the  assessment  of  damages,  such  remote 
contingencies  as  frightening  of  horses,  liability  of  fires,  dan- 
ger to  persons  from  passing  trains;  such  contingencies  are  only 
to  be  considered  for  the  purpose  of  determining  whether  and 
to  what  extent  the  value  of  the  property  will  be  decreased  by 
the  building  and  operation  of  the  railroad.  If,  in  consequence 
of  its  exposure  to  such  dangers,  the  actual  value  of  the  prop- 
erty will  be  diminished  to  any  extent,  then  such  decrease  in 
value  measures  the  actual  loss  to  the  owner.  Blcsdi  vs.  C .  c& 
N.   ^Y.  R.  i?.,  48  Wis.,  168. 

If  you  believe,  from  the  evidence,  that  in  consequence  of 
the  building  and  operation  of  the  railroad  the  property  in 
question  would  be  depreciated  in  value,  whether  from  expos- 
ure to  lire,  inconvenience  from  trains  or  from  danger  to  per- 


140  EMINEIsT    DOilAIN. 

sons  and  pro  pert}' ,  then  sucli  matters  will  be  proper  to  be  taken 
into  account  by  yon  in  determining  whether  and  to  what  ex- 
tent the  said  A,  B.  will  be  damaged  by  the  construction  of 
said  road.  The  real  question  for  the  jury  is  whether,  in  con- 
sequence of  tiie  building  and  operation  of  the  road,  the 
j-jroperty  in  question  will  be  diminished  in  value.  BlcscJi  vs. 
C.  &  N.   W.  R.  R.,  48  Wis.,  168. 

If  you  believe,  from  the  evidence,  that  there  will  necessarily 
be  an  increased  danger  to  the  premises  in  question  from  fire 
arising  from  the  building  and  operation  of  the  contemplated 
railroad,  or  that  the  cost  of  insuring  the  buildings  thereon, 
with  their  contents,  will  be  necessarily  increased  by  the  build- 
ing and  operating  of  said  road,  and  that  the  (rental)  value  of 
the  premises  will  be  decreased  in  consequence  thereof,  then 
these  are  facts  proper  to  be  considered  by  you  in  determining 
the  question  of  damage  and  the  amount  thereof,  as  regards 
said  premises.  Lafayette^  etc.,  Rd.  Co.  vs.  Murdoch  et  al.,  68 
Ind.,  137;  Sivinney  vs.  Ft.   Wayne,  etc.,  Rd.  Co.,  51  Ind.,  205. 

In  assessing  the  claimant's  damages  your  inquiry  must  be 
confined  to  the  marketable  value  of  his  land  before  and  after 
the  right  of  way  is  appropriated,  taking  into  account,  in  this 
connection,  the  number  of  acres  taken  for  the  right  of  way, 
the  manner  of  its  location,  the  way  his  land  is  cut  by  the  rail- 
road, and  all  other  like  matters  appearing  in  evidence  which 
affect  the  value  of  the  land,  so  as  to  be  able  to  estimate  its  true 
market  value,  as  affected  by  the  location  of  the  railroad,  before 
and  after  such  location.  The  difference  in  the  market  value 
of  the  land  before  the  appropriation  of  the  strip  for  right  of 
■way  and  after  the  right  of  way  is  taken,  will  constitute  the 
claimant's  true  measure  of  damages;  provided  you  believe, 
from  the  evidence,  that  the  property  will  be  less  valuable  after 
the  right  of  way  is  taken,  in  consequence  of  such  taking. 
IIartshor?i  vs.  R.  C.  d;  N'.  R.  Co.,  52  la.,  613. 

If  you  find,  from  the  evidence,  that  the  claimant's  farm  con- 
sists of  about  (five  liundred)  acres  of  improved  land,  and  that 
defendant's  right  of  way  cuts  the  same  in  such  a  manner  as  to 
injure  the  value  of  the  same,  by  the  manner  in  which  it  is 
divided,  then  you  are  at  liberty  to  consider  all  the  ciicum- 
stances  and  effects,  if  any,  upon  the  lands,  by  reason  of  the 
location  of  the  railroad  thereon,  3.nd  all  the  inconveniences,  if 


CONDEMNATION    OF   LAND.  141 

any,  directly  caused  by  tlie  railway  in  determining  tlie  efi'cci; 
which  the  same  would  have  upon  the  market  value  of  the 
lands.  You  must  bear  in  mind  it  is  the  depreciation  in  the 
market  value  of  the  premises,  if  any  will  result  from  the 
building  and  operation  of  the  road,  which  is  the  true  measure 
of  damages,  and  for  which  you  are  to  allow.  You  do  not 
allow  anything  for  the  matters  which  cause  such  depreciation, 
except  as  you  allow  for  them  in  allowing  for  the  amount  of 
the  depreciation  itself. 

§  5.  Appropriation  of  Streets. — The  court  instructs  the  jury 
that  as  the  owner  of  the  lots  and  buildings  in  question,  the 
said  A.  B.  has  a  vested  right  of  free  access  to  and  egress  from 
the  lots  and  buildings  over  and  along  P.  street  in  front  of  the 
lots  as  the  same  are  now  located  and  used.  That  this  is  aright 
of  property  that  cannot  be  materially  inijH'oved  or  destroyed 
without  his  consent  except  upon  payment  to  him  of  reason- 
able compensation  therefor;  and,  therefore,  if  you  believe, 
from  the  evidence,  that  the  contemplated  railroad  will  mate- 
rially impair  or  injure  the  rights  of  ingress  and  egress  in 
the  transaction  of  business  upon  the  premises  in  question,  he 
is  entitled  to  recover  such  damages  as  will  compensate  him  for 
the  injury.  Blesch  vs.  G.  &  N.  W.  Rd.  Co.,  48  Wis.,  168: 
Grand  liapids,  etc.,  Rd.  Co.  vs.  Ileisel,  38  Mich.,  62;  Cent. 
Branee  U.  P.  Rd.  Co.  vs.  Tioine,  23  Kans.,   585. 

If  you  find,  from  the  evidence,  that  the  property  of  the 
said  A.  B.  will  be  injuriously  affected  by  the  construction 
and  operation  of  the  contemplated  railroad  along  in  front 
of  the  said  lots,  then  the  measure  of  damages  will  be  the 
difference  between  the  value  of  the  property  without  the 
railroad,  and  its  value  with  the  road  built  and  in  operation. 

If  the  jury  believe,  from  the  evidence,  that  the  running  of 
the  cars  and  locomotives  on  the  street  in  front  of  the  prem- 
ises in  question,  in  the  usual  and  ordinary  manner  of  operating 
such  cars  and  locomotives,  will  create  smoke  and  cinders  and 
throw  them  upon  the  premises,  so  as  materially  to  impair  the 
reasonable  use  and  enjoyment  thereof,  then  you  have  a  right 
to  take  these  matters  into  consideration  in  determining 
whether  or  not  the  said  A.  B.  will  be  damaged  by  the  location 
and  operation  of  the  railroad;  but  said  damages,  if  any,  must 


142  EMINENT    DOMAIN. 

be  actnal  damages,  and  tliej  can  only  be  considered  for  the 
jmrpose  of  determining  wliether  the  value  of  the  property, 
with  the  road  constructed,  will  be  less  than  it  would  be  with- 
out the  railroad,  and  the  extent  of  the  depreciation  in  value, 
if  any.     Chicago,  etc.,  R.  Co.  vs.  Mall,  90  111.,  42. 

The  jury  are  instructed,  that  if  they  find  from  the  evidence 
that  the  plaintiff  will  enjoy  any  benefits  peculiar  to  his  land 
from  the  railroad  being  built  on  this  street,  such  benefits 
must  be  deducted  from  his  damages,  if  any  are  sustained  by 
him ;  but  such  benefits  as  he  will  enjoy  in  common  with  the 
whole  community  must  not  be  so  deducted. 

In  estimating  the  damages  arising  from  (the  widening  of 
the  street)  and  the  taking  of  the  claimant's  land  therefor,  the 
juiy  should  allow  as  a  set-off,  any  special  benefits  which  will 
accrue  to  that  portion  of  the  lot  not  taken  in  consequence  of 
(the  widening  of  the  street),  provided,  the  jury  believe,  from 
the  evidence,  that  any  such  special  benefit  will  accrue  there- 
from. The  benefits  which  may  be  thus  deducted  or  set  off, 
are  such  as  are  direct  and  special  to  the  property  of  the  claim- 
ant, but  not  general  benefits  shared  by  his  land  in  common 
with  other  lands  in  the  vicinity,  or  in  common  with  other  lots 
abutting  on  the  same  street,  no  part  of  which  is  taken.  Bene- 
fits may  be  direct  and  special  although  other  lots  upon  the 
same  street  similarly  situated  will  be  similarly  benefited. 
Parks  vs.  Uamjpdeii,  20  Mass.,  395;  Cross  vs.  Plymouth,  125 
Mass.,  557. 

If  you  believe,  from  the  evidence,  that  the  property  in 
cpiestion  is  city  property,  and  mainly  valuable  to  be  built  up 
and  occupied  as  a  residence,  or  for  building  purj)oses,  and  that 
it  is  in  such  close  proximity  to  the  proposed  railroad  that  the 
jar  caused  by  the  moving  trains  will  affect  the  buildings 
standing  thereon,  or  the  noise,  smoke  or  increased  danger 
caused  by  the  use  of  the  railroad,  will  depreciate  the  market 
value  of  the  property,  then  such  matters  are  proper  to  be 
considered  by  you  in  estimating  the  amount  of  comjiensation 
to  which  the  plaintiff  is  entitled.  You  are  not  to  fix  any  defi- 
nite estimate  of  the  amount  of  damages  arising  from  the 
f-everal  sources.  The  real  question  to  be  determined,  is,  what 
is  the  market  value  of  the  pro])erty  as  a  whole  without  the 
railroad,  and  what  will  be  the  market  value  of  the  remainder 


CONDEMNATION    OF    LAND,  143 

after  the  road  is  built  and  in  operation,  making  no  allowance 
for  any  general  benefits  which  the  property  may  do'ive  from 
the  building  of  the  road  and  wliich  it  will  share  in  common 
with  other  ]iroperty  generally,  in  the  vicinity.  The  value  of  the 
property  tal^en  and  the  depreciation,  if  any,  in  the  market 
value  of  the  remainder,  added  together  constitute  the  compen- 
sation to  which  the  claimant  is  entitled  in  this  proceeding. 
In  re  N.  Y.  G.  li.  li.,  15  Hun,  63;  Chicago,  etc.  li.  Co.  vs. 
Hall,  90  111.,  42. 

In  considering  the  claim  for  damages  to  the  part  of  the  lot 
not  proposed  to  be  taken,  the  question  for  the  jury  to  deter- 
mine is  whether  such  remainder  will  be  damaged  by  the  pro- 
posed improvement,  and  if  the  jury  believe,  from  the  evidence, 
that  the  substitution  of  a  street  immediately  in  front  of  and 
adjoining  such  remainder  in  the  place  or  instead  of  the  strip 
of  land  proposed  to  be  taken,  will  not  decrease  the  value  of 
such  remainder  below  its  value  considered  as  a  part  of  the  lot 
before  anj'-  portion  was  proposed  to  be  taken,  then  the  jury 
should  not  find  any  damages  as  to  such  remainder. 

You  are  instructed  that  while  you  may  and  should  consider 
the  various  theories  or  modes  detailed  by  the  witnesses  by 
which  they  severally  arrived  at  the  amount  of  compens;ation 
to  be  made  or  the  value  of  the  land  to  be  taken,  you  may 
adopt  the  theory  or  mode  which  appears  to  you  to  be  the 
best  and  fairest,  if  not  inconsistent  with  the  rules  of  law  as 
given  in  these  instructions. 

If  you  believe  from  the  evidence  that  in  any  instance  the 
diminution  of  a  lot  by  this  proposed  improvement  will  imjmir 
tJie  value  of  the  part  of  the  lot  not  taken,  such  impairment 
should  be  considered  as  an  actual  injury  to  the  part  not  taken, 
and  as  the  direct  result  of  such  taking,  and  for  which,  under  the 
constitution  and  laws  of  this  state,  the  owner  is  entitled  to 
compensation,  but  he  is  only  entitled,  in  this  case,  to  recover  as 
damages  the  excess  of  damage,  if  any,  above  the  benefits,  if 
any,  which  will  accrue  to  the  part  not  taken  by  reason  of  such 
improvement. 

You  are  further  instructed,  as  a  matter  of  law,  that  the  owner 
is  entitled  not  simply  to  such  compensation  for  the  land  taken 
as  the  land  would  sell  for  at  forced  sale,  but  to  such  sum  as 
you  believe  from  the  evidence  the  land   is  fairly  worth  and 


144  EMINENT    DOMAIN. 

would  bring  in  the  market  in  tlie  usual  method  of  selling  land 
at  private  sale. 

You  are  not  to  understand,  from  any  of  the  instructions 
given,  that  the  value  of  the  part  of  the  lot  to  be  taken  is  to  be 
estimated  at  its  value  for  use  independently  of  the  balance  of 
the  lot,  but  its  value  is  to  be  estimated  with  reference  to  its 
use  in  connection  with  and  as  a  portion  of  the  property  not 
taken. 


CHAPTER  XV. 

CONTRACTS. 


Sec.     1.  Capacity  to  contract. 

2.  Drunkenness. 

3.  Fraud  and  circumvention  in  procuring  execution  of  contract. 

4.  Sifjnature  procured  by  fraud. 

5.  What  constitutes  a  contract — Assent  of  parties. 

6.  What  a  contract  of  sale. 

7.  Consideration  necessary  to  a  valid  contract. 

8.  What  IS  a  consideration. 

9.  New  promise  to  perform  a  legal  obligation. 

10.  Promise  to  receive  part  payment  in  full  satisfaction. 

11.  Partial  payment  by  a  stranger. 

12.  Construction  of  contracts. 

13.  Contract  modified. 

14.  Right  to  rescind  contract  for  fraud. 

15.  Right  to  rescind  for  mistake  of  facts. 

16.  Notice  of  intention  to  rescind  must  be  given,  etc. 

17.  Rescinding  by  mutual  consent. 

18.  Rescinding  for  non-performance. 

19.  Partial  performance — Breach  of  contract. 

20.  Hardship  will  not  excuse  non-performance. 

21.  What  is  an  act  of  God. 

22.  Burden  of  proving  breach  of  contract. 

23.  Contract  made  on  Sunday. 

24.  Marriage  contract,  how  proved. 

25.  Unchastity  no  defense,  when. 

26.  Desirability  of  parties  contracting. 

27.  Breach  of  promise,  how  proved. 

28.  Promise  obtained  by  fraud. 

29.  Offer  to  perform  not  necessary,  when. 

30.  Subscription  paper. 

81.  Composition  agreement  void — Fraud. 

32.  Sale  of  personal  property — Future  delivery. 

33.  No  demand  need  be  made,  when. 

34.  Only  act  of  God  and  public  enemies  will  excuse  non- performance. 

35.  Plairtiff  must  show  readiness  to  perform. 

36.  Tender  of  performance. 

37.  Custom  and  usage  enter  into  and  form  a  part  of  the  contract. 

BUILDING  CONTRACTS. 

38.  Certificate  of  architect. 

10  (145) 


146  CONTKACTS. 

§  1.  Capacity  to  Contract. — Tlie  jury  are  instructed,  that 
the  law  presumes  that  all  adult  persons  have  sufficient  inteh 
leetnal  capacitj^to  transact  husiness  witli  ordinary  intelligence, 
and  the  party  alleging  incapacity  must  overcome  this  presump- 
tion hy  a  preponderance  of  evidence.  2  Pars,  on  Cont.,  572; 
McCarty  vs.  Keanian,  86  111.,  291. 

The  court  instructs  you,  that  the  legal  presumption  is,  that 
all  persons  of  mature  age  are  of  sound  mind  and  memory,  and 
this  presumption  continues  until  the  contrary  is  shown  by  a 
preponderance  of  evidence.     S'tlli/  vs.   Waggoner^  27  111.,  395. 

The  court  instructs  you,  as  a  matter  of  law,  that  when  the 
mind  is  so  deranged  that  a  person  cannot  comprehend  and 
understand  the  effect  and  consequences  of  an  act,  or  the  busi- 
ness in  which  he  may  be  engaged,  then  the  law  will  relieve 
him  from  the  consequences  of  his  acts;  but  so  long  as  he  is 
possessed  of  the  requisite  mental  faculties  to  transact  rationally 
the  ordinary  affairs'  of  life,  he  will  not  be  released  from  the 
responsibility  that  rests  upon  the  ordinarj'  citizen.  Hariris  vs. 
Wamsley,  4:1  la.,  671;  2  Pars,  on  Cont.,  572;  Titconib  vs. 
VantijU,  84  111.  372. 

To  establish  such  a  want  of  mental  capacity  as  will  avoid  a 
contract  on  that  ground,  there  must  be  such  a  degree  of  men- 
tal derangement  or  imbecility  of  mind  as  will  induce  the  belief 
that  the  party  was  incapable  of  comprehending  the  effect  and 
consequences  of  his  act  in  entering  into  the  contract. 

If  a  person  is  callable  of  reasoning  correctly  on  the  ordinary 
affairs  of  life,  or  is  capable  of  comprehending  and  understand- 
ing the  consequences  which  usually  accompany  ordinary  acts, 
he  will  be  held  to  be  of  sound  mind,  and  be  bound  by  his  con- 
tracts.    Baldwin  vs.  Dunton,  40  111.,  188. 

The  court  further  instructs  you,  that  mere  mental  Aveak- 
ness  of  one  of  the  parties  to  a  contract,  is  not  sufficient  to  avoid 
tlie  conti-act,  or  authorize  the  party  to  rescind  it,  if  such  weak- 
ness does  not  amount  to  an  inability  to  comprehend  and  under- 
stand the  terms  and  effect  of  the  contract,  unless  it  is  acconi 
panied  by  evidence  of  imposition  or  undue  influence.     Ibid. 

§  2.  Drunltenness. — The  court  instructs  the  jury,  as  a  matter 
of  law,  tliat  to  render  a  transaction  voidable  on  account  of  the 
drunkenness  alone  of  a  party  to  it,  it  should  appear,  from  the 


CONTKACTS.  117 

evidencG,  tliat  lie  was  so  drunk  as  to  have  drowned  his  reason, 
niemoi-y  and  jiid^-nicnt,  and  impaired  liis  mental  faculties  to  an 
extent  that  would  render  him  wholly  idiotic  for  the  time 
being.  Bates  vs.  Ball,  72  111.,  lUS;  Cavender  vs.  WadduKj. 
ham,  5  Mo.  A])p.,  457;  Millei^  vs.  Finley,  26  Mich.,  249; 
Johnson  vs.  Pldfer,  6  JSTeb.,  401. 

If  you  believe,  from  the  evidence,  that  the  ])laintiff  procured 
intoxicating  liquors  and  influenced  the  defendant  to  drink  of 
the  same  until  he  became  so  intoxicated  that  he  lost  the 
rational  use  of  his  mental  faculties,  and  so  that  he  did  not  un- 
derstand what  he  was  doing,  and,  while  he  was  in  this  condi- 
tion, procured  his  signature  to  the  contract  in  question,  then 
such  contract  would  be  void  as  against  the  said  defendant,  and 
he  is  not  bound  thereby.  Mitchell  vs.  Kingman^h  Pick.,  431; 
1  Pars,  on  Cont.,  383. 

§  3.  Fraud  and  Circumvention  in  Procuring  Execution  of  Con- 
tract.— If  the  jury  believe,  from  the  evidence,  that  the  defend- 
ant was  induced  by  the  plaintiffs,  or  either  of  them,  to  sign 
the  written  contract  offered  in  evidence,  by  the  fi-aud  and  cir- 
cumvention of  said  plaintiffs,  or  either  of  them,  then  such 
written  contract  is  void  as  against  the  defendant,  and  he  is 
only  bound  by  the  actual  contract  made  between  the  parties, 
as  shown  by  other  evidence  in  the  case. 

If  you  believe  from  the  evidence  that,  at  the  time  the  con- 
ti-act  was  made,  the  defendant   was  unable  to  read  writing 

readily  and  understandingly,  and  requested  the  said to 

read  the  said  contract  to  him  (or  the  said proposed  to 

read  the  same  to  him),  and  did  so  read  it  to  the  defendant; 
and  if  you  further  believe  from  the  evidence  that  the  said 

,  when  reading  the  said  instrument,  misread  the  same 

in  any  material  part,  and  thus  induced  the  defendant  to  sign 
the  said  contract,  when  he  would  not  otherwise  have  done  so, 
this  would  constitute  fraud  and  circumvention  within  the 
meaning  of  the  law,  and  such  contract  is  not  binding  on  said 
defendant,  and  the  same  is  wholly  void  as  to  him. 

§  4.     Signature  Procured  by  Fraud — Burden  of  Proof. — If  the 

jury  believe  from  the  evidence  that  the  defendant  signed  the 
(lease)  in  question,  then  the  covenants  on  liis  part  therein  con- 


148  COKTKACTS. 

tained  will  be  binding  upon  the  defendant,  unless  tlie  jury 
furtlier'believe  from  tlrj  evidence  that  he  was  induced  to  sign 
the  same  bj  some  fraud  practiced  on  him  by  the  plaintiff;  and 
such  fraud  must  not  be  presumed  by  the  jury  without  proof, 
it  must  be  pi-oved  by  a  pre])onderance  of  evidence. 

Tou  are  further  instructed,  that  although  you  may  believe 
from  the  evidence  that  the  defendant  signed  the  lease  in 
question  without  reading  the  same  over,  still  he  cannot  release 
himself  from  the  performance  of  the  covenants  therein  con- 
tained, unless  you  further  believe  from  the  evidence  that 
the  plaintiff  fraudulently  induced  the  defendant  to  sign  said 
lease  without  reading  it  or  knowing  its  contents. 

§   5.     Wliat  Constitutes   a  Contract — Assent  of   Parties. — The 

court  instructs  the  jury,  that  before  there  can  be  a  contract 
between  two  parties,  the  minds  of  the  two  parties  must  come 
together  and  agree  upon  all  the  terms  and  conditions  of  the 
contract;  or,  as  is  sometimes  said,  the  minds  of  the  contract- 
ing parties  must  meet.  1  Par.  on  Cont.,  475;  Baler  vs.  John- 
son, Co.^  37  la.,  186;  Steel  vs.  Miller,  40  la.,  402;  Davidson 
vs.  Porter,  57  111.,  300. 

Tou  are  instructed,  that  if  one  person  makes  a  proposition 
to  another,  and  the  latter,  without  any  formal  acceptance  of 
the  proposition,  enters  upon  the  performance  of  it,  and  pro- 
ceeds to  avail  himself  of  its  benefits,  he  will  be  as  fully  bound 
as  if  he  had  in  terms  accepted  the  offer.  Miller  vs.  21anis, 
57  111.,  126. 

§  6.  "What  a  Contract  of  Sale. — The  jury  are  instructed,  that 
to  constitute  a  contract  of  sale  of  personal  propei'ty,  for  future 
delivery,  the  minds  of  the  two  parties  must  meet  and  agree 
on  the  article  to  be  sold,  the  price  to  be  paid,  the  terms  of 
the  payment,  and  the  time,  place  and  terms  of  delivery  of  the 
property  sold,  so  that  each  mind  assents  to  all  the  require- 
ments of  the  other;  if  any  one  of  these  matters  is  left  open 
for  furtlier  consideration  and  further  settlement,  there  is 
no  complete  bargain. 

§  7.  Consideration  Necessary  to  a  Valid  Contract. — The  court 
instructs  the  jury,  that  any  promise,  for  which  there  is  no  cou- 
eideration,  cannot  be  enforced  at  law. 


CONTRACTS.  149 

§  8.  What  is  Consideration. — The  court  instructs  the  jury, 
that  whatever  works  a  benefit  to  the  party  promising,  or  what- 
ever works  any  loss  or  disadvantage  to  the  person  to  whom 
the  promise  is  made,  aUhuugh  witliout  any  benefit  to  the 
promisor,  is  a  sufficient  consideration  to  support  a  contract  or 
agreement.     1  Pars,  on  Cont.,  430;  1  Pars,  on  N.  &  B.,  175. 

One  promise  is  a  good  consideration  for  another  promise, 
and  if  the  jury  believe,  from  the  evidence,  that  at  the  time  of 
the  alleged  contract  the  plaintiff  promised  and  agreed  with 
the  defendant  tliat  he  would,  etc.,  and  that  in  consideration 
thereof  the  defendant  then  agreed  with  the  ])laintiff  that  he 
would,  etc.,  then  one  of  these  promises  is  a  good  consideration 
for  the  other,  and  the  several  agreements  are  binding  upon 
the  respective  parties.  Dockray  vs.  Dumi,  37  Me.,  442;  Keis- 
ter  vs.  Miller,  25  Penn.  St.,  401;  1  Pars,  on  Cont.,  448. 

§  9.  New  Promise  to  Perform  Legal  Obligation. — The  court 
instructs  tlie  jury,  tliat  if  one  party  promise  another  to  do 
what  he  is  already  under  legal  obligation  to  perform,  then 
such  a  promise  is  not  a  good  consideration  for  a  promise  by  the 
other  party,  and  a  promise  by  him  upon  such  a  consideration 
is  not  binding,  and  cannot  be  enforced  against  liim  by  suit- 
1  Pars,  on  Cont,  437;  Collins  vs.  Godefreij.  1  B.  &  Ad",  950; 
Early  vs.  Burt,  68  la.,  716;  Tucker  vs.  Vaughn,  23  N.  W. 
Rep.,  846. 

§   10.     Promise  to  Receive   Part  Payment  in  Full  Satisfaction. — 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  of  the 
alleged  agreement  interposed  as  a  defense  in  this  case,  the  de- 
fendant was  indebted  to  the  plaintiff  in  the  sum  of  (^100),  and 
that  tliat  indebtedness  was  then  due,  then,  although  the  jury 
may  further  believe,  from  the  evidence,  that  the  plaintiff 
promised  the  defendant  that  if  he  would  pay  ($50)  of  such  in- 
debtedness within  {ten  days)  from  that  date^  he  would  take  that 
as  ]iayment  in  full,  and  forgive  him  the  balance  of  the  debt; 
and  further,  that  relying  upon  that  promise,  the  defendant 
did,  within  ten  days,  pay  the  said  sum  of  ($50),  still  such 
]iromise  on  the  part  of  the  plaintiff"  was  without  consideration, 
and  void  as  to  him,  and  he  is  not  bound'  thereby.  2  Pars,  on 
Cont,  618;  Seymoiir  vs.  Minturn,  17  Johns.,  169;  Bryant  vs. 
Brazil,  52  la.,  350. 


150  COKTRACTS. 

§  11.  Partial  Payment  by  Straugei-s. — Though  the  jury  may 
believe,  from  the  evidence,  that,  at  the  time  of  the  alleged 
agreement  for  a  settlement  of  the  matter  in  controversy  in 
this  case,  the  defendant  was  indebted  to  the  plaintiff  in  the 
sum  of  about  ($100),  and  that  such  indebtedness  was  tlien  due, 
still,  if  the  jury  further  believe,  from  the  evidence,  that  at 
that  time  the  plaintiff  promised  the  defendant  that  if  he  would 
raise  ($50)  and  pay  that  sum  ou  the  indebtsdnoss  within  {ten 
days)  from  that  date,  that  he  would  take  that  amount  as  ]^ay- 
ment  in  full,  and  forgive  him  the  balance  of  the  debt;  and 
further,  that  relying  upon  that  promise,  and  in  consideration 
thereof  {the  father  of  defendant)  paid  the  plaintiff  the  said 
sum  of  ($50,)  then  such  payment  by  the  father  forms  a  good 
consideration  for  the  promise  of  tlie  plaintiff,  and  he  is  b  )und 
thereby.  2  Pars,  on  Cont.,  619;  B:)yd  vs.  IlltchGock,  20  John., 
76;  Kellogg  vs.  Richards,  14r  Wend.,  116. 

§  12.  Construction  of  Contracts. — The  court  instructs  the 
jury,  that  when  parties  are  making  a  bargain  or  entering  into 
a  contract,  they  will  be  held  to  nuan  and  intend  just  what  the 
language  used  commonly  imports,  as  ordinarily  used  in  refer- 
ence to  the  subject  matter  of  the  contract,  and  not  what  either 
party  may  have  secretly  intended  or  meant.  Madell  vs. 
Scharlan,  QQ  Wis.,  138. 

Still,  if  the  jury  believe,  from  the  evidence  in  this  case, 
that,  at  the  time  of  the  miking  of  the  alleged  contract  in  this 
ease,  the  plaintiff  said  *  *  *  j^j-id  if  the  jury  fui'ther 
believe,  from  the  evidence,  that  the  defendant  understood 
plaintiff  to  say  *  *  *  and  that,  acting  on  that  understand- 
ing, defendant  replied  *  *  *  this  language  would  not 
constitute  a  binding  bargain  or  contract  between  the  parties. 
Nichols  vs.  Mercer,  44  111.,  250;  2  Pars,  on  Cont.,  494. 

§  13.  Contract  Motlificd. — If  the  jury  believe,  from  the  evi- 
dence, that  after  the  making  of  the  written  contract,  the  parties, 
by  parol  agreement,  modified  the  same  as  to  the  time  of  ])er- 
formance,  and  as  to  the  quality  of,  etc.,  to  be  delivered,  and 
that  the  plaintiff  performed  the  said  contract  as  so  modified, 
by  delivering,  etc.,  then  both  parties  would  be  bound  by  the 
contract  as  thus  modified.     Lee  Grand   Quarry  vs.  lielchai'd, 


CONTRACTS.  151 

40  la.,  101;  1  Greenl.  Ev.,  §  303,  304;   Cooh  vs.  Mm'jyhy,  70 
111.,  96;  Seaman  vs.  O'Eara,  29  Mich.,  Q(S. 

The  jury  are  instructed,  that  although  a  sealed  contract, 
while  it  remains  in  force  and  is  to  he  performed,  cannot  ho 
shown  to  have  heen  changed  by  parol  agiecment,  still,  a  con- 
tract under  seal  may  be  changed  Ijy  a  subsequent  verbal  agree- 
ment for  the  performance  of  additional  work,  or  the  fuinish- 
ing  of  additional  materials,  or  for  the  payment  of  an  additional 
sum  of  money,  and  if  the  work  is  subsequently  ]:erfoniied,  or 
the  material  furnished  in  accordance  with  the  terms  of  the 
contract,  as  thus  changed,  the  change  will  be  binding  upon 
both  the  parties.     Barton  vs.  Gray,  57  Mich.,  G22. 

§  14.  Right  to  Rescind  Contract  for  Fraud. — The  law  is,  that 
if  a  party  is  defrauded  in  a  contract  by  the  false  and  fraudu- 
lent representations  of  the  other  party,  he  may  elect  whether 
he  will  stand  by  the  contract  or  rescind  it;  he  may  stand  by  it 
and  recover  damages,  if  any,  resulting  from  the  fraud,  or  he 
may  rescind  the  contract  and  recover  back  what  he  has  paid. 
ParJcer  vs.  Marquis,  64  Mo.,  38;  Watson  C.  (&  M.  Co.  \q. 
(Jasteel,  68  Ind.,  476;  Berrlnger  vs.  Beecher^  58  Mich.,  557. 

You  are  instructed,  that  in  order  that  representations  may  be 
regarded  as  fraudulent,  so  as  to  be  a  ground  for  rescinding  a 
contract,  they  must  be  both  false  and  fi'audulcntly  made.  If 
they  are  made  Avith  an  honest  belief  of  their  truth,  at  the  time, 
they  are  not  fraudulent;  but  if  made  recklessly,  and  without 
any  knowledge  or  information  on  the  subject  calculated  to  in- 
duce such  belief,  and  they  prove  to  be  untrue,  then  they  are 
fraudulent  within  the  meaning  of  the  law.  Parmlee  vs. 
Adol^h,  28  Ohio  St.,  10. 

§  15.  Right  to  Rescind  for  Mistake  of  Fact. — The  court  instructs 
the  jury,  that  where  a  contract  is  made  under  an  honest  mis- 
take, as  to  a  material  fact  affecting  the  right  of  the  parties,  it 
may  be  rescinded  by  the  party  sought  to  be  charged,  upon 
discovering  such  mistake;  provided,  that  he  is  guilty  of  no 
want  of  diligence  in  not  ascertaining  what  the  real  facts  were. 
Byers  vs.  Chapin,  28  Ohio  St.,  300;  1  Story  E(p  Jur.,  §  134; 
Pars.  Cent.,  460;  Montgomery  Co.  vs.  Am,  E.  Co.,  47  Ia.>  91, 


152  CONTEACTS. 

§  16.  Notice  of  Intention  to  Rescind  Mnst  be  Given,  etc. — The 
jury  are  instructed,  that  wlien  a  person  intends  to  rescind  a 
contract  on  the  ground  of  fraud,  or  on  the  ground  of  mistake, 
he  must  give  notice  of  his  intention  promptly,  and  as  soon  as 
it  can  reasonably  be  done  after  discovering  the  facts  which  en- 
title him  to  rescind,  or  else  he  will  be  held  to  have  ratified  the 
contract. 

And  in  this  case,  whether  the  defendant  gave  the  plaintiff 
notice  of  liis  intention  to  rescind  the  contract  in  question,  and 
whether  such  notice  was  given  as  soon  as  it  could  reasonably 
be  done  after  the  alleged  discovery  of  the  fact,  relied  upon  as 
giving  the  right  to  rescind,  are  questions  of  fact  to  be  deter- 
mined by  tlie  jury  from  the  evidence  in  the  case.  Parinlee 
vs.  AMj>h,  2S  Ohio  St.,  10;  Byers  vs.  Chapin,  28  Ohio  St., 
300. 

§  lY.  Rescinding  by  Mutual  Consent. — The  Jury  are  instructed, 
that  all  contracts  may  be  rescinded  by  the  consent  of  all  the 
contracting  parties,  and  this  consent  need  not  always  be  ex- 
pressed in  words.  If  either  party,  without  rigiit,  claims  to 
rescind  the  contract,  the  other  party  need  not  object;  and  if  he 
permit  it  to  be  rescinded,  it  will  be  done  by  mutual  consent. 
2  Par.  on  Cont.,  678. 

§  18,  Rescinding  for  Non-Performance. — The  jury  are  in- 
structed, that  when  one  party  fails  or  refuses  to  perform  his 
part  of  the  contract,  with  an  intention  to  abandon  it,  or  disables 
himself  Irom  ]  erforming  it,  the  other  party  may  treat  the 
contract  as  rescinded.     2  Par.  on  Cont,  678. 

The  court  instructs  you,  as  a  matter  of  law,  that  a  contract 
cannot  be  rescinded  by  one  of  the  parties  alone,  for  non-per- 
formance by  the  other,  unless  both  can  be  restored  to  the  con- 
dition in  which  they  were  before  the  contract  was  made;  and 
if  one  of  the  parties  has  derived  any  advantage  fi'om  a  partial 
perfoi-mance  by  the  other,  he  cannot  hold  the  benetit  of  this 
and  rescind  as  to  the  residue,  on  the  ground  of  the  other's 
non-performance.     2  Par.  on  Cont.,  679. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  lias 
made  all  the  payments  called  for  by  the  contract  read  in  evi- 
dence, at  the  time  and  in  the  manner  therein  specilicd,  exccjit- 


CONTKAOTS.  153 

ing  the  last  pajnieiit  called  for,  and  that  when  the  last 
payment  became  due  he  tendered  to  the  defendant  the  full 
amount  thei-eof  and  demanded  a  deed  of  the  premises ;  and 
further,  that  the  defendant  was  then  unable  to  convey  the 
premises  in  question  to  tlie  ])laintifl:  by  a  good  and  sutiicient 
deed  in  fee  simple,  and  clear  of  all  incumbrances,  and  that  he 
failed  and  neglected  so  to  do  within  a  reasonable  time  there- 
after, then  the  plaintiff  had  a  right  to  treat  said  contract  as 
rescinded,  and  to  sue  for  and  recover  back  the  money  so  paid 
by  him,  with  interest  thereon  at  the  rate  of  six  per  cent,  per 
annum,  unless  it  appears,  from  a  preponderance  of  the  evi- 
dence, that  the  parties,  by  some  subsequent  agreement,  have 
modified  or  otherwise  waived  the  terms  of  said  original  agree- 
ment. 

If  you  believe,  from  the  evidence,  that  before  the  time 
mentioned  in  the  contract  for  the  delivery  of  the  deed,  the 
lands  mentioned  in  the  contract  had  been  sold  for  taxes,  and 
a  tax  deed,  under  said  sale,  delivered  and  recorded  among  the 
land  records  of  this  county,  then  such  tax  deed  would  consti- 
tute an  incumbrance  on  said  land,  and  the  plaintiff  was  not 
bound  to  accept  the  deed  from  the  defendant  until  such  tax 
title  should  be  released  or  conveyed  to  the  defendant. 

You  are  instructed,  that  under  the  contract  read  in  evidence, 
the  plaintiff  could  not  call  upon  the  defendant  for  a  deed  until 
the  plaintiff  had  paid  or  tendered  the  last  payment  mentioned 
in  the  contract,  and  unless  it  appears,  from  a  preponderance 
of  the  evidence,  that  throngh  no  fault  of  the  plaintiff,  and 
after  payment  or  tender  of  the  entire  amount  of  the  purchase 
money,  the  defendant,  upon  demand,  has  refused  or  neglected 
to  tender  to  the  plaintiff  a  deed  of  the  premises  in  question, 
the  jury  should  find  the  issues  for  the  defendant. 

§  19.  Partial  Performance — Breach  of  Contract. — The  court 
instructs  the  jury,  as  a  matter  of  law,  that  where  two  parties 
enter  into  a  lawful  contract  upon  sufficient  consideration,  and 
one  of  the  parties  is  ready  and  willing  to  perform,  and  makes 
preparation  to  perform  on  his  part,  but  is  prevented  from  per- 
forming by  the  other  party,  the  party  so  ready  and  willing  to 
perform  can  recover  all  damages  suffered  by  him  by  reason  of 
the  default  of  the  other  party,  iuchiding  necessary  expenses 
incurred  in  making  such  preparation. 


154:  CONTKACTS. 

§  20.  Hardship  will  not  Excuse  Non-Performance. — The  jury 
are  instructed,  as  a  matter  of  law,  that  where  parties  enter 
into  a  valid  and  lawful  contract  for  the  performance  of  an  act 
not  impossible  in  itself,  then  mere  hardship,  or  even  subse- 
quent impossibility  of  performance,  will  not  excuse  a  non- per- 
formance of  the  contract,  unless  the  impossibility  of  perform- 
ance arise  from  an  act  of  God. 

§  21.  AVhat  an  Act  of  God. — The  jury  are  instructed,  that  to 
make  an  act  of  God  an  excuse  for  not  performing  a  covenant, 
or  for  not  complying  with  the  terms  of  a  contract,  perform- 
ance must  be  impossible  by  or  through  any  known  exercise  of 
human  skill  or  power — something  must  occur  which  no  ordi- 
nary skill  or  precaution  could  have  foreseen  or  prevented.  2 
Par.  on  Cont.,  672;  Shear  vs.  ^¥right,  60  Mich.,  159. 
\See  Act  of  God.] 

§  22.  Burden  of  Proving  Breach  of  Contract. — The  court  in- 
structs the  jury,  that  to  entitle  the  plaintiff  to  recover  in  this 
case  he  must  prove,  by  a  preponderance  of  evidence,  the  con- 
tract substantially  as  alleged  in  the  declaration,  and,  also,  the 
breach  of  the  contract  as  therein  alleged  and  charged,  and 
unless  he  has  done  so,  the  jury  should  iind  for  the  defendant. 

The  court  instructs  you,  that  to  entitle  the  plaintiff  to  recover 
in  this  case,  he  must  prove  every  material  allegation  in  his 
declaration  by  a  preponderance  of  the  evidence;  he  must 
show,  by  a  preponderance  of  evidence,  that  {liere  follow  the 
char'ges  in  the  declaration). 

§  23.  Contract  made  on  Sunday. — The  court  instructs  the 
jury,  that  so  far  as  the  law  is  concerned,  parties  can  make  a 
valid  contract  as  well  on  Sunday  as  on  any  other  day.  And, 
in  this  case,  if  the  jury  believe,  from  the  evidence,  that  the 
parties  did  agree,  the  one  to  sell  the  corn  and  the  other  to 
])archase  it,  that  contract  would  be  binding  upon  both  the 
parties,  although  they  themselves  may  have  supj^osed  that  to 
make  the  contract  binding  they  would  have  to  meet  on  some 
other  day  to  ratify  it.  Moore  et  al.  vs.  Murdoch  et  al.,  26 
Cal,  514;  Richmond  y>i.  Moore,  107  111.,  429. 

Contra:     The  court  instructs  the  jur}',   that  all  contracts 


CON  TK  ACTS.  155 

made  in  tliis  state  on  Sunday,  tliougli  not  absolutely  void,  are 
voidable,  and  neither  party  can  be  bound  to  perform  such  a 
contract  against  his  will.  Meriinether  vs.  Smith,  44  Ga.,  541; 
Pike  vs.  King,  16  la,,  49;  Peake  vs.  Conlan,  43  la.,  297;  2 
Pars,  on  Cont.,  757.     Gilbert  vs.  Yachon,  69  Ind.,  372. 

§  24.  Marriage  Contracts,  How  Proved. — The  court  instructs 
the  jury,  that  to  prove  a  contract  of  marriage  an  expressed 
conti'act  need  not  be  shown.  A  mutual  engagement  may  be 
inferred  from  constant  and  devoted  attention,  gladly  welcomed, 
from  reciprocal  affection,  and  the  interchange  of  letters  ex- 
pressive of  earnest  love.  Rockafellow  vs.  Newcomb,  57  111., 
186;  2  Pars,  on  Cont.,  62;  Royal  vs.  Smith,  40  la.,  615. 

The  court  instructs  you,  that  the  contract  to  marry  may  be 
proved  by  either  positive  or  circumstantial  evidence,  and 
when  it  is  proved,  by  one  or  the  other  mode;  unless  the  evi- 
dence discloses  facts  absolving  the  party  from  its  observance 
the  party  must  be  held  liable  for  its  breach  precisely  as  in  the 
case  of  any  other  contract.      Wrightman  vs.  Coats,  15  Mass.,  1. 

If  you  believe,  from  the  evidence,  that  the  defendant  prom- 
ised to  marry  the  plaintiff,  as  alleged  in  the  declaration,  then 
no  actual  promise  of  the  plaintiff  need  be  shown.  Evidence 
of  her  preparation  for  marriage  and  of  her  carrying  herself  as 
consenting  to  and  approving  his  promise,  if  such  evidence  has 
been  introduced,  would  be  sufficient  to  establish  a  contract  of 
marriage  between  the  parties;  provided  you  believe  from  such 
evidence  that  there  was  a  marriage  contract  between  the  par- 
ties. 

A  contract  of  marriage  like  any  other  contract  may  be 
establislied  either  by  express  proof  of  the  agreement  or  by  the 
proof  of  circumstances  from  which  it  may  reasonably  be  im- 
])lied.  The  ]ilaintiff  to  maintain  an  action  for  a  breach  of  a 
marriage  contract  must  show  not  only  an  express  or  implied 
])romise  to  marry  on  the  part  of  the  defendant  but  she  must 
also  show  by  the  evidence  an  ability  and  a  readiness,  or  an 
offer  to  perform  on  her  part;  but  these  conditions  also  may  be 
inferred  by  the  jury  as  well  as  the  promise  itself  from  facts 
and  circumstances  proved  on  the  trial;  provided  the  jury  be- 
lieve from  such  facts  and  circumstances,  together  with  all  the 
evidence  in  the  case,  that  the  plaintiff  was  able,  ready  and 
willing  to  perform  the  contract  on  her  part. 


156  CONTRACTS. 

§  25.  Uuchastity  no  Defense,  "VMien. — Tlie  court  instructs 
the  jury,  that  when  a  party  enters  into  an  engagement  to 
marry  with  a  knowledge  that  the  other  party  is  unchaste,  he 
will  be  deemed  to  have  waived  the  objection,  and  cannot 
afterwards  set  it  up  as  a  reason  for  his  refusal  to  comply 
with  his  promise;  but  if  either  party  shall  be  guilty  of  acts  of 
unchastity  subsequent  to  the  engagement,  the  other  party  is 
absolved  from  the  contract,  whether  such  subsequent  acts  be 
known  to  the  latter  or  not.  2  Pars,  on  Cont.,  66;  Sprague  vs. 
Craig,  51  111.,  288;  Denslow  vs.  Ya7i  Ilorn^  16  la.,  476. 

§  26.  Desirability  of  Party  Contracting. — The  court  instructs 
the  jury  that  in  actions  of  this  kind  the  jury  should  not  take 
into  consideration  the  desirability  of  the  defendant  as  a  hus- 
band, nor  whether  the  parties  would  be  likely  to  live  together 
hai^pily  or  otherwise;  that,  in  such  cases,  if  there  be  a  breach 
of  promise  to  marry,  the  woman  loses  the  husband,  not  as  he 
might  have  been,  but  as  he  should  be,  under  the  circumstances 
proved. 

§  27.  Breach  of  Promise,  How  Proved. — The  jury  aie  in- 
structed, that  under  a  declaration  alleging  a  promise  to  marry 
upon  request,  direct  and  positive  proof  of  request  and  refusal 
are  not  required;  these  may  be  inferred  from  circumstances, 
if  the  jury  believe,  from  the  evidence,  that  the  circumstances 
proved  are  such  as  show  that  what  passed  between  the  parties 
was  equivalent  to  a  request  and  refusal.  Southard  vs.  lioxfonL 
6  Covven,  254. 

You  are  instructed  that  under  a  declaration  charging  a 
promise  to  marry  upon  request,  or  within  a  reasonable  time, 
such  request  need  not  necessarily  be  made  by  the  plaintiff  her- 
self; and,  in  this  case,  if  you  find,  from  the  evidence,  that 
there  was  a  valid  subsisting  contract  of  marriage  between  the 
plaintiff  and  defendant,  and  that  no  definite  time  was  fixed  by 
the  parties  in  the  contract,  then  the  law  would  presume  a  con- 
tract to  marry  within  a  reasonable  time;  and  if  you  further 
believe,  from  the  evidence,  that  after  the  expiration  of  a  rea- 
sonable time  from  the  making  of  said  contract,  and  before  the 
commencement  of  this  suit,  the  plaintiff  herself,  or  any  one 
authorized  by  her  for  that  ]»urpose,  called  upon  the  defendant 


CONTKACTS.  lo  i 

and  requested  him  to  marry  tlic  ])Iaintiff,  and  that  ho  refused 
and  neg'lccted  to  do  so,  then  yon  should  find  the  issues  for  the 
plaintiif. 

And  the  court  further  instructs  you  that  if  they  believe, 
from  the  evidence,  that  the  father  of  the  plaintiff,  acting  for 
her,  for  that  purpose,  called  ujion  the  defendant  and  requested 
him  to  marry  the  ]ilaintift',  you  may  infer  his  authority  to  do 
so  from  his  relationship  to  the  plaintiff,  and  such  request  is  as 
effectual  for  the  purposes  of  this  suit  as  though  made  by  the 
plaintiff"  herself. 

If  you  believe,  from  the  evidence,  that  there  was  a  mutual 
promise  of  marriage  between  the  psrties,  that  the  plaintiff 
was  able,  ready  and  willing  to  perform  the  contract  on  her 
part  and  offered  to  perform  it,  and  that  the  defendant  abso- 
lutely refused  to  perform  the  contract  or  that  his  acts  and 
conduct  were  such  as  to  denote  his  refusal  and  intention  not  to 
marry  the  ])laintiff,  then  the  ])laintiff  was  not  required  to  re- 
quest him  to  marry  her  or  to  make  a  formal  offer  to  marry 
him  to  entitle  her  to  recover  in  this  case,  unless  you  further 
believe  from  the  evidence  that  the  plaintiff  consented  to  annul 
the  contract,  or  that  the  defendant  was  justified  in  refusing  to 
carry  out  the  same  for  the  reasons  set  out  in  the  instructions 
given  for  the  defendant. 

Unless  you  believe,  from  the  evidence,  that  the  defendant 
entered  into  a  contract,  either  expressed  or  implied,  to  marry 
the  plaintiff,  you  nuist  find  for  the  defendant,  and  to  entitle 
the  plaintiff  to  recover  she  must  prove  such  express  or  im- 
plied promise  by  a  preponderance  of  evidence. 

§  28.  Promise  Obtained  by  Fraud. — Although  the  jury  may 
believe  from  the  evidence  that  the  defendant  agreed  to  marry 
the  plaintiff,  still,  if  they  further  believe,  from  the  evidence, 
that  defendant's  consent  to  such  mai-riage  was  obtained  by 
fraud,  then  the  defendant  would  not  be  bound  by  such  promise. 
In  determining  the  question  of  fraud  it  is  proper  for  the  jury 
to  cons'der  the  evidence  tending  to  show  plaintiff's  repre- 
sentations as  to  her  previous  character,  and  as  to  whetlier  she 
had  always  been  a  single  woman,  if  you  find  from  the  evidence 
that  such  representations  were  made  to  the  defendant,  that 
they  were  made   for  the    purpose  of  inducing  defendant  to 


158  CONTRACTS. 

enter  into  sncli  contract  and  that  be  was  induced  thereby  to 
enter  into  the  same. 

§  29.  Offer  to  Perform  not  Necessary,  When. — The  jury  are 
instructed,  that,  if  they  believe,  from  the  evidence,  that  there 
was  a  valid  contract  for  marriage  between  the  plaintiff  and 
defendant,  as  charged  in  the  declaration,  and  that,  while  such 
contract  was  neither  forfeited  nor  annulled  by  the  plaintiff, 
the  defendant  married  another  woman,  then  the  plaintiff  need 
neither  allege  nor  prove  an  offer  to  perform  on  her  part ;  the 
law  does  not  require  a  useless  act. 

You  are  instructed,  that  a  promise  to  marry,  without  any 
specified  time  for  such  marriage  being  mentioned,  is,  in  law,  a 
jiromise  to  marry  within  a  reasonable  time;  and  if  you  be- 
lieve, from  the  evidence,  that  such  a  contract  for  marriage 
existed  between  the  parties  to  tliis  suit,  as  is  alleged   in  the 

count  of  the  declai-ation,  and  that  a  reasonable  time  had 

elapsed  since  the  making  of  such  contract,  and  before  the 
commencement  of  this  suit,  and  that  the  defendant  unjustifi- 
ably failed  on  his  part  to  fulfill  such  contract,  or  has  married 
another  woman,  then  you  should  find  the  issues  for  the  plaint- 
iff;  and  in  case  of  the  marriage  of  the  defendant  the  plaintiff 
need  nut  show  a  request  to  him  to  perform  his  part  of  his 
contract  with  her. 

§  30.  Subscription  Paper. — The  court  instructs  the  jury, 
that  where  money  is  promised  to  be  paid  upon  a  subscription 
paper,  and  the  promise  is  based  upon  the  fulfillment  of  certain 
conditions,  or  the  performance  of  certain  work,  or  the  attain- 
ment of  certain  objects,  set  forth  in  the  instrument  subscribed, 
then  the  performance  of  the  conditions,  or  the  labor,  or  the 
attainment  of  the  object,  is  sufficient  consideration  to  support 
the  promise  to  pay.     McCahe  vs.  O*  Connor ^  63  la.,  134. 

And  in  such  a  case,  it  is  not  necessary  that  the  parties 
named  in  the  instrument  should  themselves  perform  the  con- 
ditions; it  is  sufficient  if,  upon  the  faith  of  the  subscription, 
tlie  condition  has  been  performed  by  some  one.  1  Pars,  on 
Cont.,  452;  Congrerjational  Society,  etc.,  vs.  Perry,  6  N.  II., 
1G4;  Miller  vs.  Ballard,  46  111.,  377;  State,  etc.,  vs.  Cross,  9 
Yt.,  289. 


COJSTKACTS.  159 

If  you  believe,  from  tlie  evidence,  that  the  defendant  signed 
the  subscription  paper  introduced  in  evidence,  and  that  the 
])laintiff,  on  the  faith  of  that  subscription,  went  on  and  (built 
the  ehurcli)  and  became  personally  liable  for  the  cost  thereof, 
and  that  the  defendant  has  not  paid  his  subscription  or  ^/"O 
rata  share  thereof,  you  should  find  the  issues  for  the  plaintiff. 
Pryor  vs.  Cain,  25  111.,  292. 

If  you  believe,  from  the  evidence,  that  the  defendant  at- 
tended a  public   meeting  in   the    town  of ,  called    for  the 

purpose  of  adopting  measures  for  {huilding  a  church)  by 
private  subscription,  and  that  at  that  meeting  the  defendant 
and  others  publicly  announced  what  they  would  severally  give 
toward  the  undertaking  and  that  the  defendant  then  promised 
that  he  would  give  % to  have  the  said  undertaking  accom- 
plished, and  that  tlie  plaintiff,  relying  upon  said  promises  so 
made  by  the  defendant  and  others,  went  on  and  ]ierformed 
labor,  or  expended  time  and   money,  and    completed  the  said 

,  then  said   defendant  would    be   liable  in  this   action;  if 

you  find,  from  the  evidence,  that  he  has  not  paid  the  amount 
so  promised  by  him,  then  you  should  find  for  the  plaintiff. 
Wilson  vs.  McClure,  50  111.,  366. 

The  court  instructs  you,  that  in  this  class  of  cases,  if  all  the 
money  subscribed  was  necessarily  expended  in  securing  tlie 
end  designed,  the  several  subscribers,  if  liable  at  all  under  the 
evidence,  are  liable  for  the  full  amount  subscribed,  less  such 
sums  as  they  have  already  paid  thereon;  but  if  the  evidence 
shows  that  an  amount  less  than  the  amount  subscribed  was 
necessarily  expended,  then  the  recovery  should  be  Hmited  to 
i\\Q pro  rata  share  of  the  amount  necessarily  expended,  less 
the  sums,  if  any,  already  paid.    Miller  vs.  Ballard,  46  111.,  377. 

§  31.  Composition  Agreement  Void — Fraud. — On  effecting  a 
composition  agreement,  the  law  demands  the  utmost  good 
faith  on  the  part  of  the  debtor.  He  cannot  be  pernn'tted  to 
induce  a  creditor  to  accept  a  part  of  a  debt  in  lien  of  the 
v/hole,  by  ])retending  to  be  insolvent,  when,  in  fact,  he  is  not 
so,  and  thereby  defraud  his  creditors  out  of  a  portion  of  their 
just  debts. 

Where  a  composition  agreement  is  made,  the  debtor  pro- 
fesses to  deal  with  all  the  creditors  who  enter  into  it,  on  terms 


160  CONTEACTS. 

of  perfect  equality,  and  if  at  the  same  time  lie  has  a  secret 
agreement  with  one  of  the  creditors,  which  gives  him  an 
undue  advantage,  this  is  a  fraud  upon  the  other  creditors, 
wiiich  vitiates  the  composition  agreement,  and  in  such  case  a 
creditor,  althoagh  he  may  have  received  the  am jimt  named 
in  the  composition  agreamjnt,  may  sue  for  and  recover  the 
full  amount  of  his  original  demand,  less  the  amount  received 
under  the  composition  agreement.  Hefter  vs.  Cahn^  73  111., 
296. 

In  this  case,  if  you  believe,  from  the  evidence,  that  for  the 
purpose  of  inducing  any  of  his  creditors  who  have  signed  the 
composition  agreement,  to  sign  the  same,  the  said  defendant 
made  any  secret  or  private  agreement  with  such  creditor,  or 
any  of  them,  by  which  they  were  to  receive  more,  or  obtain 
any  advantages,  other  than  as  specified  in  such  agreement,  and 
that  the  said  plaintiff,  when  he  signed  the  same  and  received 
his  dividend  thereunder,  had  no  knowledge  of  such  secret 
agreement,  these  facts  would  render  the  same  agreement 
fraudulent  and  void  as  to  him,  and  he  would  have  the  right 
to  sue  for  and  recover  the  full  amount  of  liis  original  demand, 
less  the  amount  received  under  the  composition  agreement. 

And  in  this  case,  if  you  believe,  from  the  evidence,  that  at 
or  about  the  time  that  the  plaintiff  signed  the  composition 
agreement  in  question,  the  defendant  stated  and  represented 
to  the  plaintiff  tliat  {a7iy  matter  as  to  his  jpecunianj  condition) 
for  the  purpose  of  inducing  the  plaintiff  to  sign  the  said  agree- 
ment, and  that  the  said  plaintiff  believed  such  statements  and 
representations  to  be  true,  and  was  thereby  induced  to  sign  the 
said  agreement;  then,if  you  further  believe, from  the  evidence, 
that  the  said  statements  and  representations  were  not  true,  and 
that  the  defendant,  at  the  time  they  were  made,  knew  they 
were  not  true,  then  the  plaintiff  would  not  be  bound  by  the 
said  agreement,  and  he  would  have  a  right  to  sue  for  and 
recover  the  full  amount  of  liis  original  claim,  less  the  amount 
received  under  the  composition  agreement.  Arnistrong  vs. 
M.  N.  Bank,  6  Biss.,  520;  El  felt  vs.  Snow,  2  Sawyer,  91. 

§  32.      Sale    of   Porsonal    Property — Future  Delivery. — If    the 

jury  believe,  from  the  evidence,  that  in  the  winter  of  1879 
the  defendant  sold  to  the  plaintiff',  and  the  jjlaintiff"  imrchased, 


CONTRACTS.  161 

tlie  best  sixty  head  of  cattle  out  of  defeTidant"'s  herd,  that  lie 
was  then  feeding,  to  be  delivered  to  the  plaintiff  between  the 
1st  and  the  13th  of  the  following  March,  the  plaintiff,  on 
such  delivery,  to  pay  therefor  six  cents  per  pound,  gross 
weight,  of  said  cattle;  and  if  the  jury  further  believe,  from 
the  evidence,  that  during  the  month  of  February  the  defend- 
ant sold  and  delivered  to  another  person  twenty  head  of  cattle 
so  sold,  and  thus  put  it  out  of  his  power  to  comply  with  his 
said  agreement,  and  that  plaintiff  was  ready  and  willing  to 
take  and  pay  for  the  cattle  so  purchased  by  him  at  the  time 
stipulated  in  said  contract,  and  that  the  plaintiff'  has  sustained 
damages  from  defendant's  failure  to  deliver  the  cattle  as 
agreed,  then  the  defendant  is  liable  to  the  plaintiff"  in  this 
action,  and  the  measure  of  damages  is  the  difference,  if  any, 
between  such  contract  price  and  what  the  cattle  were  worth  at 
the  time  and  place  when  and  where  they  were  to  have  been 
delivered  by  the  terms  of  the  contract. 

If  you  believe,  from  the  evidence,  that  in  the  fall  of  18 — , 
the  defendant  made  a  contract  with  the  plaintiff  for  the  sale 
and  delivery  to  him  of  one  thousand  bushels  of  number  two 
wheat,  at  $ —  ]^er  bushel,  to  be  delivered  at  plaintiff's  place  of 
business,  in  the  city  of  S.,  at  any  time  during  the  then  next 
month  of  April,  whenever  the  plaintiff  should  demand  the 
same,  the  price  to  be  paid  as  the  grain  was  delivered;  and  fur- 
ther, that  during  the  said  month  of  April,  the  plaintiff"  de- 
manded of  the  defendant  the  delivery  of  said  wheat,  and  was 
then  ready  and  willing  to  pay  for  the  same  as  fast  as  it  should 
be  delivered,  and  that  the  defendant  refused  or  neglected  to 
deliver  the  grain  in  accordance  with  such  demand;  and  if  you 
further  believe,  from  the  evidence,  that  at  the  time  of  such  de- 
mand the  market  price  of  such  wheat  at  the  said  city  of  S.  was 
more  than  the  said  agreed  price,  then  you  should  find  for  the 
plaintiff.     jSleicfer  ys.    Wallham?i,  45  IU.,  4:3. 

§  33.  No  Demand  Need  be  Made,  AVheii, — If  the  jury  believe, 
from  the  evidence,  that  the  defendant  made  with  the  plaintiff' 
the  agreement  set  out  in  either  count  of  the  plaintiff's  declara- 
tion, and  that  before  the  time  for  the  delivery  of  the  cattle  the 
defendant  put  it  out  of  his  power  to  comply  with  said  agree- 
ment, on  his  part,  then  it  was  unnecessary  for  the  plaintiff  to 
11 


162  CONTRACTS. 

make  a  demand  for  the  cattle  in  order  to  fix  the  defendant's 
liability;  provided,  it  further  appears,  from  the  evidence,  that 
the  plaintiff  was  ready  and  willing  to  take  and  pay  for  the 
cattle,  at  the  time  and  place  agreed  npon. 

§  34r.  Only  Act  of  God,  or  Public  Enemies,  will  Excuse  Non- 
Performance. — The  court  instructs  the  jury,  that  where  a  person 
makes  a  contract  to  do  a  thing  which  is  in  itself  possible  to  be 
done,  he  will  be  liable  for  a  breach  of  such  contract,  notwith- 
standing it  was  beyond  his  power  to  perform  it.  WalJxier  vs. 
Tucl-er,  TO  111.,  527. 

The  court  instructs  you,  as  a  matter  of  law,  that  where  a 
person  contracts  to  sell  stock  (grain  or  other  personal  property), 
and  deliver  the  same  at  a  specified  place,  upon  a  specified  day, 
inclemency  of  the  weather,  bad  condition  of  the  roads,  sick- 
ness, or  other  unforeseen  contingency,  furnishes  no  excuse  for 
the  non-performance  of  the  contract,  unless  it  be  expressly  so 
provided  in  the  contract.  Kritzinger  vs.  Sanborn,  70  111.,  146. 
[See  Act  of  God.] 

§  35.  Plaintiff  Must  Show  Readiness  to  Perform. — The  court 
instructs  the  jury,  as  a  matter  of  law,  that  in  a  suit  by  a  pur- 
chaser of  articles  of  personal  property,  to  be  delivered  to  him 
at  a  certain  time  and  place,  in  order  to  recover  damages  for 
non-delivery,  it  is  necessary  for  the  plaintiff  to  prove  that  he 
was  ready  and  willing  to  receive  and  pay  for  the  same  at  such 
time  and  place.     Kritzinger  vs.  Sanlorn,  70  111.,  146. 

If  you  believe,  from  the  evidence,  that  the  defendant  made 
with  the  plaintiff  such  a  contract  for  the  delivery  of  grain,  as 
is  set  forth  in  either  of  the  counts  of  the  plaintiff's  declara- 
tion, and  that  the  plaintiff'  was  ready  and  willing  to  receive 
such  grain  and  pay  for  tlie  same,  as  stated  and  alleged  in  such 
count;  and  if  you  further  believe,  from  the  evidence,  that  the 
defendant  failed  to  perfoi-m  his  ])artof  the  contract,  as  alleged 
in  the  same  count  of  the  declaration,  without  fault  on  the  part 
of  the  plaintiff,  then  the  defendant  is  liable  in  damages  for 
such  breach  of  the  contract  on  his  part,  if  any  damages  have 
been  thereby  sustained  by  the  plaintiff. 

And,  in  such  case,  the  measure  of  damages  is  the  difference 
between  the  contract  price  and  the  market  value  of  the  same 


CONTKACTS.  163 

grain  at  the  time  and  place  where  it  should  have  been  deliv- 
ered under  the  contract.     Metz  vs.  Albrecht,  52  111.,  491. 

The  court  instructs  you.  that  while  in  a  suit  by  a  purchaser 
of  personal  property,  to  be  delivered  at  a  certain  time  and 
place,  it  is  necessary,  in  order  to  recover  damages  for  non- 
delivery, for  the  plaintiff  to  prove  that  he  was  ready  and  will- 
ing to  receive  and  pay  for  the  property  at  such  time  and  p^acs, 
stiLl,  it  is  not  necessary  that  these  facts  should  be  proved  by 
direct  testimony  thereto;  they  may  be  proved  by  the  facts 
and  cii'cumstances  appearing  in  evidence  on  the  trial,  if  they 
are  of  a  character  to  satisfy  the  jury  that  such  was  the  case. 

When,  by  the  terms  of  a  contract,  the  two  acts  of  soiling 
and  delivering,  and  receiving  and  paying,  are  to  be  done  at 
the  same  time,  then,  in  an  action  for  non-delivery,  it  is  only 
necessary  for  the  plaintiff  to  show  that  he  was  ready  and  will- 
ing to  receive  the  property  and  pay  for  it  at  the  time  and  place 
agreed  upon,  and  this  may  be  proved  by  the  facts  and  circum- 
stances appearing  in  evidence  on  the  trial,  if  they  are  of  such 
a  character  as  to  satisfy  the  jury  that  the  plaintiff  was  so  ready 
and  willing  to  take  and  pay  for  such  property. 

§  36.  Tender  of  Performance. — The  jury  are  instructed,  that 
if  one  party  to  a  contract  is  able  and  ready,  and  offers  to  per- 
form the  agreement  on  his  part,  but  is  prevented  from  per- 
forming by  the  other  party,  then  such  offer  will  be  treated  as 
excusing  non-performances  by  the  party  offering,  and  he  may 
recover  the  damages,  if  any,  sustained  in  consequence  of  not 
being  allowed  to  perform  on  his  part. 

§  37.  Custom  and  Tisane  Enter  Into  and  Form  Part  of  a  Con- 
tract.— The  court  instructs  the  jury,  as  a  matter  of  law,  that 
when  a  contract  is  entered  into,  the  parties  are  supposed  to 
have  reference  to  the  known  usages  and  customs  which  enter 
into  and  govern  the  business  or  subject  matter  to  which  the 
contract  relates,  if  there  are  any  such  usages  and  customs, 
unless  such  presumption  is  rebutted  by  the  agreement  itself. 

Such  customs  as  are  universally  known  to  exist,  enter  into 
and  form  a  part  of  every  contract  to  which  they  are  applicable, 
although  they  are  not  mentioned^or  alluded  to  in  the  contract. 
2  Pars,  on  Cont.,  636;  Hughes  vs.  Stanley^  45  la,,  622;  Page 


164  COKTEACTS. 

VS.  Cole,  120  Mass.,  37;  Carter  vs.  Phila.  Coal  Co.,  77  Penn. 
St.,  286;  Castleman  vs.  /X  J!/.  Ins.  Co.,  14  Bush.,  197. 

Altliougli  the  usages  of  trade  cannot  be  set  up  to  contra- 
vene an  established  rule  of  law,  or  to  vary  the  terms  of  an 
exjiress  contract,  yet  all  contracts  made  in  the  ordinary  course 
of  business,  without  particular  stipulations  to  the  contrary,  are 
presumed  to  be  made  in  reference  to  the  usages  and  customs 
of  such  trade,  if  any  such  exist.  Loiiergan  vs.  Stewart,  55  111., 
44. 

A  usage  of  trade,  in  order  to  be  binding  upon  the  parties, 
must  be  generally  known  and  established  among  those  who  aie 
engaged  in  the  business  where  the  usage  is  claimed  to  exist, 
and  so  well  settled  and  so  uniformly  acted  upon  as  to  raise  a 
fair  presumption  that  it  was  known  to  both  the  contracting 
parties,  and  that  they  contracted  in  reference  to  it,  and  in  con- 
formity to  it.  Lyon  <&  Co.  vs.  Culbertson,  83  111,,  33 ;  Co^- 
inan  et  al.  vs.  Campbell  <&  Co.,  '61  iW.,  98;  Couch  \q.  The 
Watson  C)al  Cj.,  46  la.,  17;  Bisoh  vs.  Pollock,  41  Mich.,  64. 

The  court  instructs  3'ou,  that  a  custom,  to  be  binding  as 
such,  must  be  general  and  uniform  in  the  place  or  in  the 
branch  of  business  where  it  is  claimed  to  exist.  It  must  be 
certain,  reasonable,  and  sufficiently  ancient  to  afford  the  pie- 
sumption  that  it  is  generally  known.  Leggat  et  al.  vs.  Sands 
A.  Co.,  60  III,  158 ;  Randall  et  al.  vs.  Smith,  63  Me.,  105. 

BIIILDING    CONTRACTS. 

§  38.  Certificate  of  Arcliitect,  etc. — If  the  jury  believe,  from 
the  evidence,  that  the  contract  read  in  evidence  was  made  by 
and  between  the  plaintiffs  and  defendant  and  that  plaintiffs 
did  the  work  and  furnished  the  material  for  the  building  to 
the  satisfaction  of  the  architects  named  therein,  and  that  the 
same  was  so  certified  by  him,  then  the  verdict  should  be  for 
the  plaintiff  upon  that  contract  for  the  amount  due  thereon 
after  deducting  payments  and  set-offs  allowed  by  the  archi- 
tects, provided,  the  jury  believe,  from  the  evidence,  that  there 
is  any  amount  due  thereon,  after  deducting  such  payments  and 
set-offs. 

The  law  is  that  where  a  contract  for  building  a  house  provides 
that  the  work  shall  be  done  under  the  direction  of  an  architect 


CONTEACTS.  165 

therein  named,  the  price  agreed  upon  to  be  paid  upon  his  cer- 
tificate that  the,  etc.,  then  the  certificate  of  such  architect 
made  in  compliance  with  the  agreement,  is  conchisive  on  the 
rights  of  the  parties.  And  if  such  contract  also  provides  that 
the  architect's  opinion,  decision  and  certificate,  shall  in  all 
matters  pertaining  to  such  contract  and  the  erection  of  such 
building  be  binding  and  conclusive,  tlien  the  certificate  of  such 
architect,  if  made  in  compliance  with  such  contract,  is  conclu- 
sive on  the  parties,  and  his  decision  cannot  be  vaiied  or 
appealed  from  unless  for  fraud  or  mistake  on  the  part  of  the 
architect. 

l^OTE. — The  necessity  for  producincr  the  architect's  certificate  may  be 
waived.     Hay  den  vs.  Coleman,  73  N.  T.,  567. 

By  the  terms  of  the  contract  introduced  in  evidence  the 
plaintiffs  were  to  do  the  brick  work  and  plastering  on  the  de- 
fendant's building  therein  mentioned  under  the  superintend- 
ence of  the  architect  therein  named,  and  payments  were  to  be 
made  upon  estimates  by  such  architect,  from  time  to  time,  as 
the  work  should  progress,  not  exceeding  eighty-five  per  cent, 
upon  the  work  done,  and  when  all  the  work  should  be  done 
and  completed  and  so  certified  to  by  the  architect,  then  the 
whole  amount  of  the  contract  price  or  balance  thereof  unpaid, 
sliould  be  ]mid,  and  in  order  to  entitle  the  plaintiffs  to  recover 
for  any  final  balance  under  such  contract  or  for  any  additional 
work  done  under  the  direction  of  such  architect  under  the 
provision  of  the  contract,  it  is  incumbent  upon  the  plaintiffs 
to  prove  that  such  final  certificate  was  issued  by  the  architect 
and  that  the  same  had  been  presented  to  the  defendant  and 
imyment  thereunder  demanded.  Schenke  vs.  Rowell^  7  Daly 
(K  T.),  286;  Sullimn  vs.  Byrne,  10  S.  C,  122. 


CHAPTER  XVI. 
DIYORCE. 


Sec.     1.  Residence  and  desertion.  < 

2.  Husband  has  the  right  to  select  the  residence. 

3.  Provocation  for  the  wife  leaving — Abusive  language. 

4.  Separation  by  mutual  consent. 

6.  Absence  alone  not  proof  of  desertion. 

6.  Separation  by  mutual  consent — Desire  for  reconciliation. 

7.  Grounds  of  desertion  by  wife. 

8.  Adultery  excuse  for  desertion. 

9.  Cruelty  as  an  excuse  for  desertion. 

10.  Acts  of  cruelty  must  be  apprehended  at  the  time. 

11.  Adultery  as  a  ground  for  divorce. 

12.  Adultery  must  be  proved. 

13.  Extreme  and  repeated  cruelty,  ground  for  divorce. 

14.  Drunkenness  and  threats. 

15.  Personal  violence  must  be  shown. 

16.  Personal  violence  not  necessary,  in  some  States. 

17.  Acts  of  cruelty  must  be  repeated. 

18.  Acts  of  cruelty  must  be  recent. 

19.  Reason  for  cruelty  must  exist  when  the  bill  is  filed. 

20.  Acts  of  cruelty  provoked  by  complainant. 

21.  Cruelty  provoked  by  a  refusal  to  cohabit. 

22.  Hysteria. 

23.  Complainant  laboring  under  a  delusion. 

24.  Burden  of  proof. 

25.  Condonation. 

Note. — The  following  instructions,  relating  to  the  subject  of  divorce, 
have  been  prepared  m.ore  especially  with  reference  to  the  statute  of  Illinois 
relating  to  divorce  and  the  decisions  under  that  statute;  but,  with  very 
slight  changes,  they  can  generally  be  adapted  to  the  laws  of  most  of  the 
other  states. 

§  1.  Residence  and  Desertion. — The  jniy  are  instructed,  tliat 
m  law  the  domicile  of  the  husband  is  that  of  the  wife,  and 
her  residence  follows  that  of  the  husband.  When  a  husband 
acquires  a  new  home,  it  is  the  duty  of  the  wife  to  ^o  with 
him,  and  if  she  refuses,  without  justification,  for  two  years, 
the  husband  will  be  entitled  to  a  divorce.  Kennedy  vs.  Ken- 
nedy, 87  III.,  250;  Hunt  vs.  Hunt,  29  N.  J.  Eq.,  96. 

(166) 


DIVOKCE.  167 

§  2.  Husband  has  the  Right  to  Select  the  Residence. — That  the 
husband  has  the  right  to  select  his  domicile,  and  to  change 
his  residence,  and  it  is  the  duty  of  the  wife  to  accompany 
liim,  and  if  she  refuses  without  some  good  and  justifiable 
cause,  as  explained  in  these  instructions,  he  will  not  be  guilty 
of  deserting  his  wife  by  selecting  and  going  to  a  new  home 
and  leaving  her  behind.  Bcibhit  vs.  Babbit,  G9  111.,  277;  1 
Bishop  onM.  and  D.,  §  78S;  Ashbaugh  vs.  Ashbaugh,  17  111., 
476. 

§  3.     Provocation  for  the  AVife  Leaving — Abusive  Language. — 

That  while  the  statute  has  not  made  abusive  language,  and  the 
application  of  coarse  and  vulgar  epithets,  a  cause  for  divorce, 
yet  such  conduct  on  the  part  of  the  husband  toward  his  wife, 
and  charging  her  with  a  want  of  chastity  without  cause,  if 
proved,  is  sufficient  to  justify  her  in  abandoning  him,  and  in 
living  separate  and  apart  from  him.  Bishop  on  M.  and  D., 
§  726. 

You  are  instructed,  that  the  only  ^juestion  presented  by  the 
issues  in  this  case  is,  whether  or  not  complainant  and  defend- 
ant were  living  together  as  husband  and  wife,  at,  etc.,  on,  etc., 
and  whether  or  not,  at  that  time,  the  defendant  willfully,  and 
without  just  or  reasonable  cause,  deserted  the  com])lainant 
and  his  iiome,  and  has  willfully  remained  absent  therefrom, 
without  just  and  reasonable  cause,  for  the  space  of  two  years 
prior  to  the  filing  of  the  complainant's  bill  in  this  case. 

§  4.  Separation  by  Mutual  Consent. — The  jury  are  instructed, 
that  where  a  husband  and  wife,  by  mutual  consent,  agree  to 
separate  and  live  apart,  and,  pursuant  to  such  agreement  and 
consent  they  do  live  separate  and  apart  from  each  other,  this 
will  not  constitute  such  a  desertion  as  is  required  under  the 
statute  as  a  ground  for  divorce.  Cox  vs.  Cox.,  35  Mich.,  461; 
1  Bishop  on  M.  and  D.,  §  7b3.  Seller  vs.  Beller,  50  Mich., 
49. 

§  5.  Absence  Alone  not  Proof  of  Desertion.— The  jury  are  in- 
structed, that  absence  alone  does  not  constitute  desertion.  To 
constitute  desertion,  within  the  meaning  of  the  law,  there 
must  not  only  be  absence,   but    this    must    be  coupled  with 


]  68  DIVORCE. 

an  intention,  on  the  part  of  the  party  chari^ed,  to  desert  and 
]iermanently  abandon  the  otlier  party;  and  in  this  case,  if  the 
jury  find  from  the  evidence,  that  when  the  defcDdant  left  this 
state,  he  went  away  with  the  intention  of  providing  another 
home  for  himself  and  wife,  and  of  afterwards  sending  for  her, 
or  of  returning  and  taking  her  with  him  to  his  new  home,  this 
would  not  amount  to  a  desertion,  although  continued  for  more 
than  two  years.     Swan  vs.  Swan,  15  ISTeb.,  453. 

And  in  such  case,  before  the  comj)lainant  will  be  entitled  to 
a  divorce  on  the  ground  of  desertion,  the  jury  must  further 
believe,  from  the  evidence,  that  after  defendant  left  he  changed 
liis  mind,  and  then  determined  not  to  come  or  send  for  com- 
plainant, but  did  intend,  from  that  time,  to  desert  and  abandon 
her,  and  that  such  change  or  intention  occurred  two  years  or 
more  before  the  commencement  of  this  suit.  1  Bishop  on  M. 
and  D.,  §  783. 

§   6.     Separation  by  Mutual  Consent — Desire  for  Reconciliation. — 

Although  the  jury  may  bijlieve,  from  the  evidence,  that  at  one 
time  the  parties  to  this  suit  separated,  by  mutual  consent,  still, 
if  the  jury  further  believe,  from  the  evidence,  that  afterwards 
the  complainant  desired  to  renew  her  marriage  relations  with 
the  defendant,  and  in  good  faith  sought  a  reconcih'ation,  and 
expressed  a  desire  to  have  him  return  and  live  with  her,  and 
that  lie  refused  to  accord  to  that  request,  then,  from  that  time, 
defendant's  absence,  if  proved,  would  constitute  a  desertion, 
and  if  continued  for  a  period  of  two  years,  without  justifiable 
cause,  as  explained  in  these  instructions,  would  be  good  ground 
for  a  divorce  in  favor  of  complainant.  1  Bishop  on  M.  and 
D.,  §  786. 

Although  you  may  believe,  from  the  evidence,  that  some 
time  about,  etc.,  defendant  professed  a  desire  to  be  reconciled 
to  complainant,  and  requested  her  to  return  and  live  with  him, 
still,  if  you  further  believe,  from  the  evidence,  that  this 
request  was  coupled  with  the  qualification  or  condition  that, 
etc.,  such  a  qualification  or  condition  was  one  that  complainant 
was  under  no  obligation  to  assent  to,  and  such  an  offer,  if 
proved,  can  not  avail  the  defendant  anything  in  this  suit.  1 
Bishop  on  Mar.  and  Div.,  §  786. 


DIVORCE.  169 

§  7.  Grounds  of  Desertion  by  Wife. — The  jury  are  instructed, 
that  adultery  on  the  part  of  the  liusband,  if  known  to  tlie 
wife  (or  extreme  and  repeated  cruelty,  or  habitual  drunJienness 
for  the  jperiod  of  two  years),  if  proved,  is  a  good  and  sufficient 
cause  to  justify  a  wife  in  leaving  her  husband  and  living  sepa- 
rate and  apart  from  him.  Schouler's  Duni.  Rel.,  90;  Stevens 
vs.  Story,  43  Yt,  327;  Hancock  vs.  Meirick,  10  Cush.,  41; 
Rea  vs.  DurJcee,  25  111.,  503. 

§  8.  Adultery  Excuse  for  Desertion. — The  jury  are  instructed, 
that  adultery  ought  not  to  be  presumed,  without  proof,  but 
it  should  be  clearly  established  by  a  preponderance  of  the  evi- 
dence in  the  case;  and  unless  the  Jury  believe,  from  the  evi- 
dence in  this  case,  that  the  complainant  did,  prior  to  defend- 
ant's leaving  him,  or  during  her  absence,  commit  adultery, 
then  the  defendant  was  not  justified  in  leaving  complainant 
and  remaining  absent  from  him  for  the  space  of  two  years — 
"if  the  jury  believe,  from  the  evidence,  that  she  did  so  leave 
and  remain  absent — simply  because  of  any  suspicions  of  adul- 
tery which  she  may  have  entertained,  in  respect  to  her  hus- 
band and  {these  women,  or  either  of  them). 

You  ai-e  instructed,  that  if  you  believe,  from  the  evidence, 
that  at  the  time  defendant  left  complainant — if  you  believe, 
from  the  evidence,  slie  did  so  leave,  as  charged — complainant 
was  the  head  of  a  family  consisting  of,  etc.,  and  continued  to 
live  with  juch  family,  then  he  had  a  perfect  right  to  employ  a 
housekeeper  during  that  time,  and  to  associate  with  her  in  all 
ways  that  are  usual  with  men  and  virtuous  females,  and  to 
visit  his  neighbors  and  female  acquaintances  ;  and  these  facts 
alone,  if  proved,  would  afford  no  evidence  that  he  was  guilty 
of  adulter}^  with  such  persons. 

§  9.  Cruelty  as  an  Excuse  for  Desertion. — The  court  instructs 
the  jury,  as  far  as  relates  to  the  alleged  acts  of  cruelty,  that  if 
they  believe,  from  the  evidence,  that  the  defendant  did  leave 
the  comijlainant,  and  remained  away  from  him,  as  charged  in 
the  bill,  then  to  justify  such  leaving  and  absence,  upon  the 
ground  of  cruel  treatment,  the  jury  must  believe,  from  the 
evidence,  that  the  complainant  actually  committed  an  act,  or 
acts,  of   personal   violence  to    the  person  of  the  defendant, 


170  DIVOECE. 

prior  to  the  time  of  the  alleged  desertion;  and  that  abusive 
language,  or  violent  sallies  of  passion,  is  not  such  violence  as 
will  justify  desertion,  if  desertion  has  been  proved;  nor  would 
threats  of  violence  justify  the  alleged  desertion,  if  it  has  been 
proved,  unless  they  were  made  under  such  circumstances  as 
would  justify  a  reasonable  apprehension  of  bodily  injury  in 
case  she  remained.     Bishop  on  M.  and  D.  §  795,  et  seq. 

You  are  instructed,  that  such  cruelty  as  would  authorize  a 
jnarried  woman  to  leave  the  house  and  home  of  her  husband, 
must  be  acts  of  phj^sical  violence  inliicted  by  him  upon  her 
person;  or  such  demonstrations  or  threats  of  actual  violence, 
made  by  hira  toward  her,  as  would  induce  a  well-grounded 
fear  in  a  reasonable  mind  that  such  violent  injuries  would  be 
inflicted  upon  her  by  her  husband  in  case  she  remained.  Car- 
ter vs.  Carter,  62  111.,  439. 

§  10.  Acts  of  Cruelty  3Iust  be  Apprehended  at  the  Time. — With 
reference  to  the  alleged  acts  of  cruelty,  which  are  claimed  to 
have  justified  defendant's  wife  in  leaving  him,  the  court  in- 
structs the  jury,  that  it  is  not  material  what  had  formerly  been 
the  treatment  of  his  wife  by  the  defendant,  if  the  jury  be- 
lieve, from  the  evidence,  that  after  all  the  improper  treatment 
had  ceased,  she  continued  to  live  with  him,  without  complaint 
or  objection  ;  and  if  there  was  no  repetition  of  bad  treatment 
at  the  time  she  left,  and  no  reasonable  ground  to  fear  or  appre- 
hend such  treatment,  at  the  time  she  left,  then  the  law  pre- 
sumes that  the  former  offenses,  if  there  were  any,  had  been 
forgiven,  and  they  would  not  justify  her  in  leaving. 

§  11.  Adultery  as  a  Groutul  for  Divorce. — The  court  instructs 
the  jury,  that  on  a  charge  of  adultery,  as  a  ground  for  divorce, 
a  preponderance  of  evidence  is  sufficient  to  establish  the 
charge.  It  is  not  required  that  the  jury  be  satisfied  of  the 
truth  of  the  charge  beyond  a  reasonable  doubt.  Chestnut  vs. 
Chestnut,  88  111.,  518. 

§  12.  Adultery  3Iust  be  Proved. — The  jury  are  further  in- 
btructed,  that  the  law  does  not  allow  the  jury  to  presume  the 
adultery  of  the  defendant,  if  the  facts  or  circumstances  relied 
upon  to  establish  it   may  as  well  be  attributed  to  an  innocent 


DIVORCE.  171 

intent  or  motive  as  to  a  guilty  one.  Blake  vs.  Blake^  70  111., 
61S. 

Where  adultery  is  charged,  as  a  ground  for  divorce,  the  act 
charged  is  one  that  tends  to  degrade  the  parties,  and  inflicts 
great  injury  upon  society,  and  if  the  facts  shown  by  the  evi- 
dence may  as  well  be  explained  u])on  the  hj^pothesis  of  inno- 
cence as  of  guilt,  then  you  should  always  adopt  the  former 
rather  than  the  latter  hypothesis.  Cheatnut  vs.  Chestnut,  88 
111.,  518. 

§  13.     Extreme  andRepeateil  Cruelty  as  a  Ground  for  Divorce. — 

The  court  instructs  the  jury,  that  the  extreme  and  repeated 
cruelty  required  to  constitute  a  cause  for  a  divorce,  must  be 
physical  harm  as  contradistinguished  from  harsh  or  opprobri- 
ous language,  or  even  mental  suffering.  The  cruelty  must  be 
grave,  and  subject  the  person  to  great  bodily  harm.  Hender- 
son vs.  Henderson,  88  111.,  248. 

A  single  act  of  cruelty  does  not  constitute  sufficient  grounds 
for  a  divorce.  Tiiere  must  be  extreme  and  repeated  cruelty, 
which  must  consist  in  physical  violence,  and  not  merely  angry 
or  abusive  epithets  or  profane  language;  angry  or  abusive 
words,  menaces  or  indignities  do  not  constitute  cruelty,  within 
the  meaning  of  our  statute.     Embre  vs.  Emhre,  53  111.,  391. 

§  14.  Drunkenness  and  Threats. — If  the  jury  believe,  from 
the  evidence,  that  during  the  time  when  defendant  is  charged 
with  cruelty,  he  was  guilty  of  drunkenness  from  time  to  time, 
and  when  intoxicated,  was  in  the  habit  of  making  threats  of 
personal  violence  against  the  complainant,  then  these  are  facts 
which  the  jury  have  a  right  to  consider,  in  connection  with 
all  the  other  evidence  in  the  case,  in  determining  whether  de- 
fendant has  been  guilty  of  extreme  and  repeated  cruelty 
toward  the  complainant,  and  also,  whether  she  had  reasonable 
cause  to  apprehend  bodily  harm,  or  danger  to  life  or  limb,  at 
the  time  she  filed  her  bill  in  this  case. 

If  you  believe,  from  the  evidence,  that  the  defendant,  for  a 
period  of  two  years  prior  to  the  beginning  of  this  suit,  was 
frequently  and  customarily,  or  habitually  given  to  the  excess- 
ive use  of  intoxicating  drink,  and  had,  during  said  two  years, 
or  more,  lost  the  power  or  the  will,  by  the  frequent  indul- 


172  DIVOECE. 

geuce,  to  control  his  appetite  for  it,  then  the  defendant  is 
guilty  of  habitual  drunkenness.  Richards  vs.  Richards,  19 
111.  App.,  465;  Pratt  vs.  Pratt,  34  Yt.,  323;  Com.  vs.  AYMt- 
7iey,  5  Gray,  85;  LudioicTc  vs.  Com.,  18  Penn.  St.,  174;  Mag- 
aliahy  vs.  Magahaky,  35  Mich.,  210;  Mur_phy  vs.  People,  90 
111.,  59. 

§  15.  Personal  Violence  Must  be  Shown. — That  when  a 
charge  of  extreme  and  repeated  cruelty  is  the  ground  of  appli- 
cation for  divorce,  unkind  treatment,  threats  of  personal  vio- 
lence, abusive  language  and  opprobrious  epithets,  if  proved, 
without  personal  violence,  do  not  constitute  that  degree  of  ex- 
treme and  repeated  cruelty  which  the  law  requires,  to  author- 
ize a  decree  of  divorce  for  that  cause. 

To  authorize  a  divorce,  on  the  ground  of  extreme  and 
repeated  cruelty,  the  acts  complained  of  must  consist  of  phys- 
ical violence,  or  such  as  constitute  bodily  pain  and  suffering. 
Mere  angry  or  abusive  words,  profane  language,  menaces  or 
indignities,  do  not  constitute  cruelty,  within  the  meaning  of 
our  Illinois  statute. 

§  16.  In  some  States  Personal  Violence  not  Necessary. — If  the 
jury  believe,  from  the  evidence,  that  recently  before  the 
commencement  of  this  suit  the  defendant  was  in  the  habit 
of  using  profane,  obscene  and  insujting  language  towards 
the  complainant  in  the  presence  of  her  mother  and  little 
children  (or  others)  to  such  an  extent  as  to  render  her  life 
miserable,  then  this  would  constitute  extreme  cruelty  for 
which  our  statute  authorizes  a  divorce.  Goodman  vs.  Good- 
man, 26  Mich.,  417;  McClung  vs.  McClung,  40  Mich.,  493; 
Kennedy  vs.  Kennedy,  73  N.  Y.,  369. 

That  to  justify  a  verdict  in  favor  of  complainant  actual 
physical  violence  need  not  be  proved,  provided  the  jury  believe, 
from  the  evidence,  that  there  is  j-easonable  ground  to  believe 
that  if  the  complainant  is  compelled  to  live  and  cohabit  with 
the  defendant  as  his  wife  her  life  or  health  will  be  endangered 
by  his  wrongful  treatment  of  her.  Black  vs.  Blaclx,  30  JM^.  J. 
Eq.,  215. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
was  in  the  habit  before  and  at  the  time  of  the  commencement 


DIVORCE.  1  (  o 

of  this  suit  of  using  violent,  coarse  and  abusive  language  to 
complainant  and  subjecting  her  to  aggravating  annoyances 
and  humiliating  insults  to  such  an  extent  as  to  endanger  her 
health  or  life,  then  this  would  be  legal  cruelty  authoi'izing  a 
verdict  in  her  favor.  Latliain  vs.  Latham^  30  Gratt.  (Va).,  307. 
The  jury  are  instructed  that  the  degree  or  kind  of  cruelty 
tliat  authorizes  a  divorce  is  any  wrongful  conduct  on  the  part 
of  the  defendant  which  tends  to  the  bodily  harm  of  complain- 
ant, or  involves  danger  to  her  health  or  life.  And  although 
the  ]\\Y^  may  believe,  from  the  evidence,  that  the  defendant 
has  been  in  the  habit  of  using  angry  words  and  coarse,  violent 
and  abusive  language  towards  the  complainant,  or  of  subject- 
ing her  to  aggravating  annoyances  or  humiliating  insults,  still, 
if  the  jury  further  believe,  from  the  evidence,  that  these 
things  merely  tended  to  wound  the  feelings  of  the  complain- 
ant, but  were  not  accompanied  by  any  bodily  injury  or  threat- 
ened danger  to  life  or  health,  they  would  not  amount  to  legal 
cruelty.  Henderson  vs.  Henderson,  8S  III.,  248;  Latham  vs. 
Latham,  30  Gratt.  (Ya.),  307. 

§  17.  Acts  of  Cruelty  Must  be  Repeated. — That  a  single  act  of 
cruelty,  if  proved,  does  not  constitute  a  sufficient  ground  for 
a  divorce.  There  must  bo  extreme  and  repeated  cruelty,  and 
the  acts  of  cruelty,  to  authorize  a  divorce,  must  be  done  so 
recently  before  the  filing  of  the  bill,  or  under  such  circum- 
stances, as  to  justify  the  complainant  in  reasonably  apprehend- 
ing, at  the  time  that  the  bill  is  filed,  that  the  acts  of  violence 
or  cruelty  will  be  rej^eated  if  she  continues  to  live  with  the 
defendant  in  the  relation  of  husband  and  wife.  And  it  must 
also  appear  from  the  evidence  that  the  acts  of  cruelty  com- 
plained of  were  not  provoked  by  the  wrongful  acts  of  the 
complainant,  or  if  they  were  so  provoked,  that  they  were  out 
of  all  reasonable  proportion  to  the  provocation. 

§  18.  Acts  of  Cruelty  Must  be  Recent. — Even  if  the  jury 
should  believe,  from  the  evidence,  that  the  defendant  lias  been, 
at  some  former  time,  guilty  of  extreme  and  repeated  cruelty 
towards  the  complainant,  still,  if  they  believe,  from  the  evi- 
dence, that  for  several  years  after  that,  and  before  the  filing 
of  this  bill,  the  parties  had  lived  together  as  man  and  wife, 


17-i  DIVORCE. 

and  that  defendant's  treatment  of  liis  wife,  before  and  at  the 
time  of  the  filing  of  the  bill,  was  snch  that  she  had  no  reason- 
able ground  for  apprehending  a  repetition  of  cruel  treatment 
when  the  bill  was  tiled,  the  jury  should  find  the  defendant  no,t 
guilty. 

§  19.     Reason  to  Fear  Cruelty  Must  Exist  Wlien  Bill  is  Filed. — 

The  court  further  instructs  the  jury,  that  to  authorize  a  verdict 
in  this  case  for  the  complainant,  the  jury  must  believe,  from 
the  evidence,  that  before  and  at  the  time  the  bill  in  this  case 
was  filed,  the  treatment  of  the  complainant  by  the  defendant 
was  such  as  to  constitute  what  the  law  deems  extreme  and 
repeated  cruelty:  or  in  case  such  extreme  and  repeated 
cruelty  has  been  pi-acticed  before,  then  sucli  a  state  of  facts 
and  circumstances  must  appear  from  the  evidence  as  afforded 
a  reasonable  ground  for  the  comjilainant  to  believe  that  she 
would,  in  the  future,  receive  from  her  liusband  such  a  degree 
of  bodily  injury  as  to  render  it  improper  for  her  to  continue 
to  live  with  him;  and  unless  the  jury  believe,  from  the  evi- 
dence, that  there  was,  at  the  time  the  bill  in  this  case  was 
filed,  reasonable  ground  for  the  complainant  to  appi'ehend 
such  cruel  treatment  from  the  defendant  in  the  future,  then 
they  should  find  for  the  defendant. 

To  authorize  a  divorce,  upon  the  ground  of  extreme  and 
repeated  cruelty,  there  must  be  acts  or  threats  made  recently 
before  the  filing  of  the  bill ;  or  the  circumstances  must  be  such 
as  to  raise  a  reasonable  appreljension  of  bodily  hurt,  and  show 
a  state  of  personal  danger  of  injury,  incompatible  with  the 
duties  of  married  life,  at  tlie  time  the  bill  is  filed. 

The  court  instructs  you,  that  the  ultimate  question  for  them 
to  decide  is,  whether,  at  the  time  the  bill  in  this  case  was  filed, 
the  defendant  had  been  guilty  of  extreme  and  repeated  cruelty, 
and  whether,  at  that  time,  the  complainant  had  reasonable 
cause  to  fear  a  continuance  of  such  treatment;  and  in  de- 
termining these  questions,  the  jury  should  not  be  influenced  in 
their  judgment  by  any  considerations  other  than  such  as  bear 
directly  On  these  questions  ;  the  jury  have  nothing  to  do  with 
any  questions  affecting  the  rights  of  the  parties  to  property,  or 
their  future  means  or  manner  of  support. 

If  you  believe,  from  the  evidence,  that  the  defendant  had 


DIVORCE.  175 

been  guilty  of  cruel  treatment  towards  the  complainant,  at 
some  considerable  time  prior  to  her  leaving  the  defendant, 
and  of  the  filing  of  the  bill  in  this  case,  this  fact  alone  will  not 
authorize  a  verdict  for  the  complainant;  it  must  also  ap))ear, 
from  the  evidence,  that  at  the  time  the  comj)lainant  filed  her 
bill  in  this  case,  she  had  reasonable  cause  to  apprehend  a 
repetition  of  such  treatment  in  the  future. 

The  courts  do  not  grant  divorce  on  the  ground  of  cruel 
treatment,  as  a  punishment  of  oiienses  long  since  committed; 
when  they  do  grant  divorces  upon  that  ground,  it  is  to  pre- 
vent the  commission  of  such  offenses  in  the  future. 

§  20.  Acts  of  Cruelty  provoked  by  Complainant. — If  the  Jury 
believe,  from  the  evidence,  that  defendant  has  been  guilty  of 
acts  of  violence  against  the  complainant,  still,  if  they  further 
believe,  from  the  evidence,  that  such  acts  were  provoked  by 
complainant's  misconduct,  then  the  jury  should  not  find  the 
defendant  guilty,  by  reason  of  such  acts  of  violence;  provided, 
such  misconduct  is  proven  to  have  existed,  and  to  have  been  of 
such  character  as  might  be  reasonably  expected  to  provoke 
the  acts  charged  against  the  husband.  1  Bishop  on  M.  and  D., 
§  764;  Skinner  vs.  Skinner,  5  Wis.,  449;  Harper  vs.  Harper, 
29  Mo.,  301, 

The  law  will  not  authorize  the  granting  of  a  divorce,  on  the 
gronnd  of  extreme  and  repeated  cruelty,  if  the  acts  com- 
plained of  were  inflicted  under  wanton  provocation  on  the 
part  of  the  complainant,  or  if  they  were  only  the  working  of 
ordinary  human  passion,  brought  into  exercise  by  the  mis- 
conduct of  the  complainant,  unless  the  violence  of  the  defend- 
ant, in  such  case,  is  out  of  all  reasonable  propoi-tion  to  the 
provocation. 

The  law  will  not  permit  a  person,  by  her  misconduct,  to 
wantonly  provoke  injury,  and  make  the  injury  thus  received 
a  ground  for  divorce,  unless  the  injury  is  out  of  all  reason- 
able proportion  to  the  provocation.  The  law  considers,  in 
such  cases,  that  the  person  complaining  has  the  remedy  for 
all  ordinary  injuries  in  his  own  hands,  and  that  there  is  no 
occasion  to  resort  to  a  court  of  equity.  1  Bishop  on  ]\L  and 
D.,  §§  764  et  seq.\  King  vs.  King,  28  Ala.,  315. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 


176  DIVOKCE. 

defendant  did  use  force  and  violence  against  the  complainant, 
still,  if  the  jury  further  believe,  from  the  evidence,  that 
complainant  was  guilty  of  misconduct  of  such  a  cliaracter  as 
might  be  reasonably  expected  to  provoke  such  acts  of  force 
and  violence,  and  that  the  complainant  pnrposelj  incited  and 
provoked  such  acts  of  violence  with  the  object  and  purpose 
of  affording  her  a  pretended  gronnd  or  excuse  for  com- 
mencing a  snit  for  divorce,  and  that  such  acts  of  force  and 
violence  were  not  out  of  reasonable  proportion  to  the  provo- 
cation but  were  only  sncli  as  ordinarily  reasonable  men  would 
be  likely  to  employ  under  similar  circumstances,  then  the  jury 
are  instructed  that  their  verdict  should  be  for  the  defendant. 

§  21.  Cruelty  Provoked  by  a  Refusal  to  Cohabit. — The  court 
instructs  the  jury,  that  if  they  believe,  from  the  evidence, 
that  the  complainant  unreasonably,  and  without  sufficient 
cause,  refused  to  accoi'd  to  the  defendant  the  marriage  rights 
of  cohabitation,  and  that  the  treatment  complained  of  was 
provoked  by  such  refusal,  then  the  complainant  is  not  entitled 
to  a  verdict  in  this  cause,  unless  it  appears,  from  the  evidence, 
that  the  injui-ies  complained  of  were  out  of  ail  proportion  to 
such   provocation. 

The  law  imposes  upon  the  husband  and  wife  the  duty  of  ac- 
cording, each  to  the  other,  the  right  of  sexual  intercourse,  to 
a  reasonable  extent,  unless  there  be  some  i^hysical  cause  render- 
ing such  indulgence  improper  or  unhealthful,  and  that  a  with- 
holding of  such  right,  if  proinpted  or  induced  by  motives  of 
dislike,  or  without  proper  cause,  if  proved,  is  such  conduct  as 
the  jurj'  may  properly  consider  in  determining  whether  there 
was  provocation  for  the  cruelty  charged  or  proven. 

§  22.  Hysteria. — The  court  instructs  the  jury,  that  if  they 
believe,  from  the  evidence,  that  at  the  time  that  the  offenses 
charged  in  the  bill  are  alleged  to  have  been  committed,  the 
com])lainant  was  suffering  from  attacks  of  hysteria,  and  that 
the  tendency  of  that  disease  is  to  partially  derange  the  mental 
faculties,  and  to  blunt  the  moral  sensibilities,  and  to  give  a 
person  false  and  exaggerated  views  and  impressions  of  what  is 
actually  occurring  around  them ;  and  if  the  jury  further  believe, 
from  t/ie  evidence,  that  the  mind  of  the  complainant  at  these 


DIVORCE.  177 

times  was  so  affected,  then  these  facts  are  proper  to  be  taken 
into  consideration  by  the  jury,  in  connection  with  all  the  other 
evidence  in  the  case,  in  determining  what  degree  of  credibility 
should  be  attached  to  her  testimony  relating  to  the  commis- 
sion of  such  offenses. 

The  court  mstiaicts  you,  that  the  testimony  of  the  doctors 
{and  the  inedlcal  worJcs  introduced  in  evidence)  is  competent 
and  legal  evidence  of  the  facts  stated  {in  the  hooks)  and  testi- 
fied to  by  the  doctors,  and  should  be  treated  by  the  jury  as 
evidence  in  the  case,  and  considered  by  them  in  connection 
with  all  the  evidence  in  the  case  in  arriving  at  a  verdict. 

§  23.  Complainant  Laboring  under  a  Delusion. — If  the  jury 
believe,  from  the  evidence,  that  the  complainant,  before  and 
at  the  time  she  commenced  this  suit,  had  been,  and  that  she  is 
still  laboring  under  a  delusion,  that  she  was  and  is  in  danger 
of  bodily  hurt  from  the  defendant,  and  if  the  jury  further 
believe,  from  the  evidence,  that  such  delusion,  if  it  existed,  was 
unfounded,  and  that  no  real  cause  for  such  fear  on  the  y^art  of 
complainant  existed  at  the  time  of  the  tiling  of  the  bill,  or  at 
any  time  since,  and  that  this  suit  and  the  prosecution  of  it  by 
her  are  the  product  of  such  delusion,  then  you  are  instructed, 
that  you  should  find  a  verdict  for  the  defendant. 

§  24.  Burden  of  Proof. — The  court  instructs  the  jury,  that 
the  complainant  is  bound  to  establish  her  case  by  preponder- 
ance of  evidence;  and  unless  she  has  done  so,  the  jury  should 
find  the  issues  for  the  defendant. 

The  law  requires  that  the  complainant,  to  entitle  her  to  a 
verdict,  shall  establish  her  case  by  a  preponderance  of  evidence; 
and  if  the  jury  find  the  testimony  so  contradictory,  or  so 
evenly  balanced,  that  they  are  unable  to  arrive  at  a  satisfac- 
tory conckision  as  to  the  truth  or  falsity  of  the  charges 
against  the  defendant,  then  the  jury  should  find  the  issues  for 
the  defendant. 

§  25.     Condonation. — The  court  instructs  the  jury,  that  in 
ihe  case  of  condonation,  there  is  an  express  or  implied  agree- 
ment that  the  party  forgiving  does  so  only  on  the  condition  that 
the  party  forgiven  will  not  repeat  the  offense,  but  will,  in  the 
12 


178  DIVORCE. 

future,  perform  all  the  marital  duties  the  relation  imposes. 
Kennedy  vs.  Kennedy^  87  111.  250;  Sharp  vs.  /Sharp,  IIG  111., 
509. 

That  condonation  is  foi'giveness  n])on  condition  that  the 
iiijuiy  shall  not  be  repeated,  and  it  is  dependent  ujjon  future 
good  usage  and  conjugal  kindness;  and  it  must  be  free,  and 
not  obtained  by  force  and  violence  or  by  fraud.  2  Bishop  on 
M.  and  D.,  §  33. 

You  are  further  instructed,  that  condonation  of  personal 
acts  of  violence  and  cruelty  may  be  avoided  by  abusive  lan- 
guage, and  the  use  of  opprobrious  epithets.  A  wife  having 
forgiven  her  husband's  acts  of  physical  cruelty,  may,  from 
the  subsequent  use  of  abusive  and  brutal  language,  and 
charges  of  inlidelity,  conclude  that  it  will  end  as  on  former 
occasions,  in  personal  violence,  and  she  is  not  bound  to  wait 
and  submit  to  personal  violence.  Farnliam  vs.  J^\irnham^  73 
III,  497. 

The  court  instructs  you,  that  the  law  is,  that  if  the  injured 
party,  husband  or  wife,  cohabits  with  the  other,  subsequent  to 
an  adulterous  offense,  the  party  injured  having  the  ability  to 
prove  the  fact,  it  will  be  a  bar  to  a  proceeding  for  divorce  for 
thatotfense,  the  offense  being  considered  as  thereby  condoned; 
but  the  court  further  instructs  you,  that  condonation  is  always 
accompanied  with  the  implied  condition  that  the  injury  shal 
not  be  repeated,  and  that  the  offending  party  will  thereaftei 
treat  the  other  with  conjugal  kindness,  or  the  offense  will  be 
revived.     Davis  vs.  Davis,  19  111.,  331;    2  Bishop  on  M.  and 

r>.,  §  43. 


CHAPTER  XVII. 

EJECTMENT. 


Sec.     1.  Only  legal  titles  involved. 

2.  One  in  possession  of  real  estate  presumed  to  be  the  owner. 

3.  Paper  title  shown  by  plaintiff. 

4.  Right  to  possession  must  be  shown. 

5.  Title  can  only  be  conveyed  by  deed. 

6.  Title  deduced  from  a  common  source. 

7.  Both  parties  claim  under  "J.  W." 

8.  Priority  of  deeds. 

9.  Visible  monuments  control  courses  and  distances. 

10.  Boundary  on  watercourse. 

11.  Boundaries  a  question  of  fact  for  the  jury,  and  not  for  the  sur- 

veyor. 

12.  Plaintiff's  deed  by  way  of  mortgage. 

13.  Poi^session  prima  facie  evidence  of  title. 

14.  First  possessor  has  the  better  title. 

15.  Deed  from  party  in  possession  claiming  title. 

ADVERSE  POSSESSION. 

16.  Title  by  prescription — AVithout  color  of  title. 

17.  Must  be  hostile  in  its  inception. 

18.  Permissive  possession  not  hostile. 

19.  Possession  subservient  to  the  true  owner. 

20.  Possession  presumed  to  be  under  legal  title. 

21.  Paper  not  necessary. 

22.  Possession  by  successive  holder. 

23.  Deed  not  necessary  to  transfer  possession. 

24.  Temporary  line  fence. 

25.  Line  fence  agreed  upon. 

26.  Division  line  agreed  upon  through  mistake. 

27.  Possession  under  color  of  title — Payment  of  taxes — Illinois. 

28.  Burden  of  proof — Limitation. 

29.  What  must  be  shown  under  limitation  law. 

30.  What  constitutes  possession. 

31.  Possession  of  wood  lands. 

32.  Enclosure  by  natural  objects. 

33.  Possession  not  under  color  of  title. 

34.  Possession  according  to  boundaries  in  title  papers. 

35.  Notice  by  possession. 

(179) 


180  E.TECTMENT. 

§  1.  Only  Legal  Titles  Involved  ( W?icre  Common  Law 
Rule  Prevails). — The  court  instructs  the  jury,  that  in  an  ac- 
tion of  ejectment  it  is  only  the  legal  rights  of  tlie  parties,  as 
distinguished  from  their  equitable  rights,  that  the  jury  have 
a  right  to  consider.  In  this  case,  if  the  plaintiff  shows  a  legal 
title  to  the  premises  in  controversy,  as  explained  in  the  fol- 
lowing instructions,  then  no  equitable  right  in  the  defendant 
will  bar  the  plaintiff's  right  of  recovery.  Tyler  on  Eject,  30, 
564;  Sifnsys.  Gray.,  ^^  Mo.,  613;  Dawson  vs.  Haijden,  67  111., 
52 ;  Buell  vs.  Irwin.,  24  Mich.,  145 ;  JVkyte  vs.  Smith,  4  Saw- 
yer (Oreg.),  17 ;  Philljwtts  vs.  Blasdell,  8  J^ev.,  61 ;  Kelley 
vs.  HendricJcs,  57  Ala.,  193. 

§  2.  One  in  Possession  of  Real  Estate  Presumed  to  be  Owner. — 
Tliat  while  it  is  true  that,  to  entitle  the  plaintiff  in  ejectment 
to  recover,  he  must  not  only  show  title  in  himself,  but  he  must 
also  show  that  he  was  entitled  to  the  possession  of  the  prem- 
ises at  the  commencement  of  the  suit,  still,  the  law  is,  that 
the  one  who  shows  the  better  legal  title  to  real  estate  is  always 
presumed  to  be  entitled  to  the  possession  of  the  |  rojerty,  un- 
less the  other  party  shows  some  valid  legal  right  to  the  pos- 
session of  the  property,  as  against  the  true  owner.  Thompson 
vs.  Burhans,  15  Ilun  (K  Y.),  581. 

§  3.  Paper  Title  Shown  by  Plaintiff. — The  court  instructs  the 
jury,  that  the  deeds  and  papers  introduced  in  evidence  by  the 
plaintiff,  in  this  case,  are  sufficient  to  vest  the  legal  title  to  the 
whole  of  the  {description  'of  the  land)  in  the  plaintiff,  and  to 
authorize  him  to  take  the  possession  of  the  whole  of  that 
tract  of  land,  as  bounded  by  the  government  survey  lines,  un- 
less the  defendant  has  shown  an  adverse  possession  to  the 
same,  or  to  some  part  thereof,  as  explained  in  these  instruc- 
tions, for  a  period  of  twenty  years  or  more,  before  the  com- 
mencement of  this  suit. 

§  4.  Right  to  Possession  must  be  Shown. — The  jury  are  in- 
structed, that  to  entitle  the  plaintiff  to  recover  in  this  case,  it 
is  not  sufficient  for  him  to  sliow  that  he  holds  the  legal  title  to 
the  premises  in  controversy;  it  must  further  appear,  from  a 
preponderance  of  the  evidence,  that  at  the  time  of  the  com- 


EJECTMENT.  181 

mencomcnt  of  this  suit,  the  plaintiff  was  tlicn  entitled  to  tlie 
possession  of  the  premises.  Kilgour  vs.  GocMey,  S3  111.,  109  ; 
Gustln  vs.  Bamhmn,  34  Mich.,  511 ;  Lofz  vs.  Briggs^  50  Ind., 
3-46;  Williams  vs.  Murphy,  21  Minn.,  534;  Sail  I'^elipe,  etc., 
vs.  Belshaw,  49  Cal.,  655. 

§  5.  Title  Can  Only  be  Conveyed  by  Deed. — The  jury  are  in- 
structed, that  there  is  no  method  known  to  the  law  for  selling 
real  estate,  so  as  to  convey  the  legal  title  from  one  person  to 
another,  except  by  deed,  in  writing  and  under  seal,  executed 
and  delivered  by  the  person  holding  the  legal  title,  or  else 
executed  and  delivered  by  some  one  authorized,  in  writing 
and  under  seal,  by  the  person  holding  the  legal  title,  to  make 
such  deed  for  and  in  the  name  of  such  owner.  {In  some  states 
a  seal  is  dispensed  %oith  by  statute.) 

§  6.  Title  Deduced  from  a  Common  Source. — The  court  in- 
structs the  jury,  as  a  matter  of  law,  that  where  both  parties, 
in  an  action  ot"  ejectment,  claim  to  derive  title  through  or 
under  the  same  person,  then  neither  party  is  bound  to  show 
title  back  of  that  person,  and  the  one  having  the  better  title 
or  right  from  that  common  source  has  the  better  title  for  all 
the  purposes  of  the  suit.  Miller  vs.  Hardin,  64  Mo.,  545; 
Sped  vs.  Gregg,  55  Cal.,  198;  Morrison  vs.  Wilkersen,  27  la., 
374;  Cronifh  vs.  Gore,  38  Mich.,  381;  Whisetihunt  vs.  Jones^ 
78  N.  C,  361. 

§  7.  Both  Parties  Claim  under  "j.  W." — The  jury  are  in- 
structed, that  in  this  case  both  parties  claim  title  to  the  land 
in  question  by  conveyances  from  one  "J.  "W.,"  and  the  party 
showing  in  himself  the  earlier  and  better  title  to  the  premises 
from  the  said  J.  W.  must  be  regarded  by  the  jury  as  the  legal 
owner  of  the  premises  for  all  the  purposes  of  this  snit. 

That  the  deed  introduced  in  evidence  in  this  case,  from  J. 
W.  and  wife  to  the  plaintiff,  McK.,  is  sufficient  to  vest  the 
legal  title  of  the  premises  in  McK.  from  the  time  it  was 
delivered  to  him;  and  the  certificate  of  recording  indorsed  on 
the  back  of  said  deed  is  sufficient  evidence  that  the  deed  was 
filed  for  record  on  the,  etc.;  and  the  deed  from  McK.  and  wife 
to  R.  M.  is  sufficient  to  vest  a  legal  title  to  an  undivided  half 


182  EJECTMENT. 

of  tlie  premises  in  qnestion  in  the  said  R.  ]\I.  from  the  time 
that  deed  was  made  and  delivered  to  him. 

§  8.  Priority  of  Deed-. — The  court  further  instructs  the  jury, 
that  the  deed  from  J.  W.  and  wife,  having  been  made  and 
delivered  to  the  defendant  after  the  deed  from  the  said  J.  W. 
and  wife  to  McK.  was  recorded,  the  plaintiffs  must  be  deemed 
to  have  the  better  legal  title,  so  far  as  their  respective  titles 
depend  upon  the  deeds  introduced  in  evidence. 

If  you  believe,  from  the  evidence,  that  after  McK.  hud 
received  his  deed,  and  had  had  it  recorded,  the  defendant  also 
took  a  deed  for  the  same  land  from  the  said  J.  "W.,  and  went 
into  possession  under  that  deed,  and  made  lasting  and  valuable 
improvements  on  the  land  without  any  authority  from  the 
plaintiffs,  or  either  of  them,  then  the  taking  of  such  possession, 
and  the  making  of  said  improvements,  will  not  affect  the 
plaintiff's  right  to  recover  in  this  suit.  Compensation  for  such 
improvements,  if  any  ought  to  be  made,  will  be  determined 
hereafter  in  future  proceedings  before  this  court. 

§  9.  Visible  Moimments  Control  Courses  and  Distances. — The 
jury  are  instructed  that  in  determining  the  boundary  line 
between  two  tracts  of  land,  if  there  are  visible  monuments 
fixed  on  the  ground  and  referred  to  in  the  deed  as  marking 
the  boundary,  and  these  can  be  ascertained,  they  will  control 
the  courses  and  distances,  if  the  line  indicated  by  the  monu- 
ments differs  from  tliat  called  for  by  the  courses  and  distances 
given  in  the  deed.      Watsortys.  Jones,  85  Penn.  St.,  117. 

§  10.  Boundary  on  "Watercoui-se. — The  rule  of  law  is  that 
where  two  persons  own  land  adjoining,  on  the  same  side  of  the 
stream  or  river,  and  are  both  bounded  by  the  river,  the  pre- 
sumption of  law  is  that  each  owns  to  the  middle  of  the  stream 
in  front  of  his  own  land,  and  if  the  shore  line  dividing  their 
lands  does  not  strike  the  river  at  rifjlit  anerles  to  the  stream 
the  boundary  line  from  the  shore  to  the  middle  of  the  river 
is  determined  by  extending  the  division  line  at  the  point 
where  it  strikes  the  shore  perpendicularly  to  the  general  course 
of  the  stream  opposite  that  point,  that  is,  running  the  line 
from  the  point  wliere  it  strikes  the  thore  to  the  nearest  point 


EJECTMENT.  183 

in  the  center  of  the  river.     ClarJc  vs.  Campaio,  19  Mich.,  325; 
Bay  City  G.  L.  Co.  vs.  Industrial,  etc.,  28  Mich.,  182. 

The  court  instructs  you,  as  a  m:itter  of  law,  that  where  a 
stream  of  water,  such  as  a  river  or  creek,  is  the  l)ouiidary  line 
between  two  adjoining  owners,  and  the  stream  alters  its  chan- 
nel from  year  to  year,  by  a  slow,  gradual  and  almost  impei'- 
ceptible  wear  upon  one  side  and  accretion  on  the  other,  then 
the  boundary  shifts  with  the  channel;  but  if  the  stream  changes 
its  course  visibly  and  violently,  making  what  is  known  as  a 
cut-off  in  higli  water,  then  the  boundary  does  not  change  with 
the  stream,  but  it  adheres  to  the  original  channel.  Collins  vs. 
The  State,  3  Tex.  App.,  323. 

§  11.  Boniidaries  a  Question  of  Fact  for  the  Jury  and  not  for  tlie 
Surveyor. — The  jury  are  instructed  that  the  question  in  this 
case  is  not  how  would  an  accurate  survey  locate  these  lots  in 
question,  but  how  did  the  original  survey  and  stakes  locat'^ 
them.  The  only  purpose  of  the  evidence  of  the  surveyors, 
who  have  made  the  recent  surveys,  is  to  enable  the  jury  to 
locate  the  original  boundaries,  if  possible,  and  not  for  the  pur- 
pose of  determining  where  they  ought  to  have  been,  or  where 
they  would  have  been  by  an  accurate  survey.  The  original 
starting  points  and  boundaries  are  questions  of  fact  for  the 
jury  to  find  from  the  evidence,  not  only  the  evidence  of  the 
surveyors,  but  all  the  other  evidence  in  the  case  bearing  upon 
these  points.  Dlehl  vs.  Zayiger,  Zd  M.'\.i!\x.,Q01;  Steway^t  vs. 
Carleton,  31  Mich.,  270;  Crwiin  vs.  Gore,  38  Mich.,  381. 

§  12.  Plaintiffs  Deed  by  Way  of  Moi^tgage. — So  far  as  regards 
this  suit,  it  can  make  no  difference  whether  the  deed  to  the 
plaintiff  was  by  way  of  mortgage  to  secure  the  payment  of  a 
snm  of  money  or  not.  If  it  was  so  made,  it  was  sufficient  to 
vest  the  legal  title  to  the  premises  in  McK.,  and  his  deed  to 
R.  M.  was  sufficient  to  vest  the  legal  title  to  an  undivided  half 
of  the  premises  in  said  M.,  and  these  two  deeds  are  sufficient 
to  enable  the  plaintiff  to  sustain  this  action,  unless  the  jury 
find,  from  the  evidence,  nnder  the  instruction  of  the  court, 
that  the  defendant  had  som3  right  to  the  possession  of  the 
property  other  than  such  as  he  acquired  by  his  alleged  pur- 
chase from  the  said  J.  W.  nnder  the  deed  introduced  in  evi- 
dence by  the  defendant.     Dijgen  vs.  Bird,  55  Ga.,  650. 


184  EJECTMENT. 

If  you  believe,  from  the  evidence,  that  MciK.'s  deed  was 
given  to  him  by  way  of  mortgage,  or  to  secure  the  payment 
of  money,  and  that  since  that  time  the  money  so  secured  has 
ail  been  i)aid,  or  settled  up,  between  the  parties,  these  facts 
alone  would  not  prevent  the  plaintiff  from  recovering  in  this 
suit;  such  payment  or  settlement,  if  proved,  might,  in  another 
suit,  entitle  the  defendant  to  a  reconveyance  of  the  land  from 
the  plaintiff,  but  until  such  reconveyance  the  plaintiff  remains 
the  legal  owner  of  the  land. 

Even  though  you  may  believe,  from  the  evidence,  that  the 
deed  from  J.  W.  to  the  plaintiff  ]\IcK.  was  made  by  way  of 
mortgage,  or  to  secure  the  payment  of  money  loaned,  that  cir- 
cumstance alone  would  not  affect  the  plaintiff's  right  to 
recover  in  this  case.  The  deed,  though  a  mortgage,  would 
still  be  sufHeient  to  vest  the  legal  title  to  the  land  in  McK.; 
provided,  the  jury  find,  from  the  evidence,  that  J.  W.  was  the 
owner  of  the  property  when  he  made  the  deed. 

§  13.  Possession  Prima  Facie  Evidence  of  Title. — The  conrt 
instructs  the  jury,  that  in  an  action  of  ejectment,  prior  peace- 
able possession  by  the  plaintiff  claiming  to  be  the  owner  in  fee, 
if  proved,  is  jprlini  facie  evidence  of  ownership  and  seizin, 
and  is  sufficient  to  authorize  a  recovery  nn^ess  the  defendant 
shall  showab3tter  title.  Sherwood  vs.  St.  Paul.,  etc.,  lid.  Co., 
2L  Minn.,  127;  B  trger  vs.  Hjohs,  67  111.,  592;  D.ivis  vs. 
Thompson.,  56  Mo.,  39. 

A  person  in  the  actual  peaceable  possession  of  real  estate  is 
presumed  to  be  the  owner  of  the  fee,  until  the  presumption 
is  rebutted,  and  he  is  not  required  to  show  in  what  manner, 
or  by  what  title,  he  holds,  until  the  plaintiff  shows  a  better 
title.  Doty  vs.  Burdiclc,  S3  111.,  473;  Sears  vs.  Taijlor,  4 
Col.,  38. 

Open,  visible  and  actual  possession  and  occupation  of  real 
estate  by  a  person  claiming  to  be  ,the  owner,  is  prima  facie 
evidence  of  title  in  the  person  so  in  possession.  The  words 
prima  facie  evidence,  mean  evidence  sufficient  to  establish 
title,  unless  some  person  shows  a  better  title. 

If  you  believe,  from  the  evidence,  that  for  some  years 
before,  and  up  to  the  time  that  J.  W.  delivered  the  deed  of 
the  land  in  question  to  the  plaintiff  McK.,  the  said  J.  W.  was 


EJECniENT.  185 

\n  tliG  actual,  open  and  visible  possession  and  occupation  of 
the  lands  in  question,  claiinin;^  to  be  the  owner  thereof,  this 
would  be  sufficient  evidence  to  show  title  in  him  at  the  time 
the  deed  was  made,  and  the  deed  from  him  to  plaintiff,  intro- 
duced in  evidence  in  this  case,  would  be  sufficient  to  vest  the 
title  to  said-  lands  in  the  plaintiff,  unless  the  defendant  has 
shown  a  prior  or  better  title,  as  explained  in  these  instructions. 

§  14.  First  Possessor  has  the  Better  Title. — When  both  par- 
ties, in  an  action  of  ejectment,  claim  title  to  the  premises  by 
showing  simply  possession  at  different  times,  under  claim  of 
ownership,  then  the  first  person  is  deemed  to  have  the  better 
title,  unless  he  delays  for  an  unreasonable  length  of  time  to 
assert  his  right  to  the  property.  MdHin  vs.  BonsacJt,  61 
Mo.,  556;  Clarh  vs.  Clark,  51  Ala.,  198;  Liun  vs.  Eeed,  53 
Miss.,  73;  Jones  v.  Easley,  52  Ga.,  454;  Southmayo  vs.  Henley, 
45  Cab,  101. 

§  15.  Deed  from  Party  in  Possession  Claiming  Title. — The 
court  instructs  the  jury,  that  if  they  believe,  from  the  evi- 
dence, that  J.  W.,  before  and  up  to  the  time  of  the  making 
of  the  deed  to  the  plaintiff,  was  in  the  actual  possession  of  the 
property,  claiming  to  own  the  same,  then  his  deed  to  the 
plaintiff  was  sufficient  jpr'ima  facie  to  vest  the  title  in  the 
plaintiff  as  against  the  defendant;  and  if  the  jury  furtlier 
believe  that  that  deed  was  recorded  in  the  recorder's  office  of 
this  county,  etc.,  and,  also,  tliat  after  that  date  the  defendant 
went  into  the  posse.-sion  of  the  land  without  any  right  or 
license  from  the  plaintiff,  or  from  some  person  authorized  by 
him  to  give  such  right  or  license,  then  the  jury  should  find  the 
issues  for  the  plaintiff. 

A.DVEESE  POSSESSION. 

Note. — As  a  treneral  rule,  adverse  possession  for  the  statutory  period 
without  color  of  title,  will  bar  a  recovery  by  the  person  holding  the  record 
title.  In  many  of  the  states,  questions  connected  with  the  subject  of  adverse 
possession,  are  determined  by  the  presence  or  absence  of  color  of  title;  and 
these  distinctions  should  be  borne  in  mind. 

§   16.     Title    by    Prescription — Without    Color    of   Title. — The 

court  instructs  the  jury,  that  by  the  laws  of  this  state,  if  a 


186  EJECTMENT.' 

person  goes  into  the  possession  of  real  estate,  under  a  claim  of 
title,  and  continues  in  the  open,  exclusive,  and  uninterrupted 
possession  of  the  premises  under  such  claim  of  title,  for  the 
period  of  {twenty)  years,  he  will  be  deemed  to  be  true  owner 
thereof.  Walbrun  vs.  Ballen,  68  Mo.,  164;  Belong  vs.  Mul- 
chei\  47  la.,  445. 

If  the  true  and  real  owner  of  land  permits  another  to  take 
possession  of  the  land,  claiming  it  as  his  own,  and  to  continue 
such  possession,  openly  and  publicly,  under  such  claim  of  title, 
for  a  period  of  {twenty)  years  or  more,  such  possession  will 
ripen  into  a  right  and  title  in  the  ])ossessor,  and  forever  after 
prevent  such  true  owner  from  taking  possession  of  the  prop- 
erty; but  in  order  to  have  this  effect,  the  commencement  of 
the  possession  must  have  been  hostile  to  the  rights  of  the  true 
owner,  and  must  be  continued,  openly  and  publicly,  for  the 
full  period  of  {twenty)  years,  under  a  claim  of  ownership,  dur- 
ing all  that  time.  Peterson  vs.  McCuUough,  50  Ind.,  35; 
Bradley  vs.  West,  60  Mo.,  33;  Ambrose  vs.  Baley,  58  111.,  506; 
Yelverton  vs.  Seel,  40  Mich.,  538;  McCarde  vs.  BarricJclow, 
69  Ind.,  356. 

§  17.  Mast  be  Hostile  in  its  Inception. — The  jury  are  instructed, 
that  adverse  possession,  sufficient  to  defeat  the  legal  title, 
must  be  hostile  in  its  inception,  and  continue  uninterruptedly 
for  {twenty)  years;  it  must  be  open,  and  of  such  a  character 
as  to  clearly  show  that  the  occupant  claims  the  land  as  his  own 
and  all  of  these  things  must  be  proved  by  a  preponderance  of 
evidence. 

Although  you  may  believe,  from  the  evidence,  that  one  A. 
B.,  more  than  twenty  years  before  the  commencement  of  this 
suit,  built  a  fence  around  the  land  in  question  {or  otherwise  im- 
proved it),  this  alone  does  not  show  adverse  possession  in  him. 
To  constitute  adverse  possession,  it  must  further  appear,  from 
the  evidence,  that  what  he  did  on  the  land  was  not  with  the 
leave  or  permission  of  the  owner,  but  was  done  under  a  claim 
of  right  in  himself,  and  in  hostility  to  the  right  of  the  owner. 
Russell  vs.  Davis,  38  Conn.,  562;  Foster  vs.  Letz,  86  111., 
412. 

S  18.     Permissive  Possession    not  Hostile. — The   jury  are  in- 


EJECTMENT.  187 

striictecl,  tliat  if  a  person  enter  into  tlie  possession  of  the  lands 
of  another,  with  the  consent  of  the  owner,  for  any  other  pur- 
pose except  to  claim  the  land  as  liis  own,  such  possession  alone, 
no  matter  how  long  it  is  continued,  will  never  bar  the  right  of 
the  owner  to  take  possession  of  his  land  when  he  sees  fit  to  do 
so.     Collins  vs.  Johnson,  57  Ala.,  304. 

§  19.  Possession  Subservient  to  the  True  Owner. — Where  pos- 
session of  real  estate  is  taken  under  a  claim  consistent  with  or 
in  subordination  to  the  title  of  the  real  owner,  nothing  but  a 
clear,  unequivocal  and  notorious  disclaimer  of  the  title  of  such 
owner  will  render  such  possession  adverse.  Tjler  on  Eject, 
217. 

§  20,  Possession  Presumed  to  be  under  Legal  Title.— The 
court  instructs  the  jury,  that  where  one  person  is  shown  to  have 
the  legal  title  to  land,  and  another  p-serson  is  shown  to  be  in 
possession  of  the  property,  if  there  is  no  evidence  to  the  con- 
trary, the  law  presumes  that  such  possession  has  been  with  the 
consent  of  the  owner,  and  not  in  liostih'ty  to  his  rights;  and  if 
the  ]ierson  in  possession  sets  up  a  claim  to  the  land  by  virtue 
of  such  possession,  the  burden  of  proof  is  on  him  to  show 
affirmatively,  by  a  pre])  nderance  of  the  evidence,  not  only 
that  lie  has  been  in  the  open,  jniblic,  and  notorious  possession, 
but  it  must  further  a]")pear,  from  the  evidence,  that  sucli  pos- 
session was  commenced  and  continued  in  hostility  to  the  true 
owner,  and  under  a  claim  of  right  as  against  him;  and  tliese 
matters  must  be  shown  by  clear  and  affirmative  proof  of  such 
facts  as  show  that  such  possession  was  taken  and  continued  in 
hostility  to  such  owner;  tliey  cannot  be  made  out  by  inference 
without  such  proof.     Tyler  on  Eject.,  860. 

The  rule  of  law  is  that  if  a  person  enters  npon  land  witliout 
any  title  or  claim  or  color  of  title,  the  law  will  adjudge  the 
possession  to  be  in  subservience  to  the  legal  owner  and  no 
length  of  such  possession  will  render  the  holding  adverse  to 
the  title  of  the  true  ownei*.  But  if  a  man  enters  on  land  with- 
out title,  claim  or  color  of  title  and  he  does  not,  in  fact,  go  in 
under  the  true  owner,  and  such  person  after  acquires  what 
he  considers  a  good  title,  from  that  moment  his  possession 
becomes  adverse.  Buckley  vs.  Taggart,  62  In.l., — ;  Jaclismi 
vs.  Thomas,  16  Jolmson,  293;  Harvey  vs.  Tyler,  2  Wal.,  328. 


ISS  EJECTMENT. 

§21.  Paper  Title  not  Necessary. — It  is  not  essential  that  a 
party,  who  takes  possession  of  lands  and  holds  adversely  to 
the  owner,  should  enter  under  a  deed,  or  other  written  title, 
to  cause  the  limitation  of  (^?o<?/i?^?/)  years  to  run  in  his  favor. 
It  is  sufficient  if  the  party  take  possession  under  claim  of  own- 
ership, and  hold  adverse  possession,  as  explained  in  these 
instructions,  for  the  period  of  {twenty)  years.  Webbei'  vs. 
Andcrsoii,  73  111.,  439. 

The  court  instructs  j^ou,  that  in  order  to  maintain  a  defense 
to  th!s  action,  under  the  twenty  years'  limitation  law,  it  is  not 
necessary  that  the  defendant  had  a  deed,  or  other  written  evi- 
dence of  title;  but  if,  under  a  claim  of  title  or  ownership,  the 
defendant  took  actual  possession  of  the  land  in  question,  and 
has  held  actual,  notorious  and  exclusive  possession  of  the 
land  in  question  for  a  period  of  {twenty)  years  prior  to  the 
commencement  of  this  suit,  claiming  title  thereto,  then  the 
plaintiff  is  not  entitled  to  recover. 

The  court  further  instructs  you,  that  when  a  party  enters 
into  the  possession  of  land,  which  is  vacant  and  unoccupied  at 
tiie  time,  claiming  it  as  his  own,  such  possession  is  hostile  in 
its  inception  to  the  owner;  and  when  such  possession  is  hostile 
in  its  inception,  and  continues  adversely  for  the  period  of 
{twenty)  years,  and  is  visible,  notorious  and  exclusive  during 
that  period  of  time,  such  facts,  if  proved  by  the  defendant, 
are  a  legal  defense  in  an  action  of  ejectment. 

If  you  believe,  from  the  evidence,  that  the  defendant  en- 
tered upon  the  land  in  question,  claiming  to  be  the  owner,  and 
continuing  in  the  actual,  visible  and  notorious  possession  of 
the  same  for  a  period  of  {twenty)  years,  under  a  claim  of  own- 
ership, then  the  plaintiff  is  not  entitled  to  recover. 

§  22.  Possession  by  Successive  Holders, — The  court  instructs 
the  jury,  that  to  constitute  adverse  possession,  as  explained  in 
these  instructions,  for  the  period  of  {twenty)  years,  it  is  not 
necessary  that  the  same  person  should  himself  have  been  in  pos- 
session of  the  premises  for  the  whole  of  that  period;  it  is  suffi- 
cient if  the  evidence  shows  that  he  and  those  under  whom  he 
holds,  either  as  heir  or  purchaser,  have  held  such  possession 
for  the  full  period  of  twenty  years. 

You  are  instructed,  that  although  you   may  believe,  from 


EJECTMENT.  189 

the  evidence,  tliat  one  A.  B.  went  into  possession  of  the  lands 
in  controversy,  more  than  [twenti/)  years  before  tlie  com- 
mencement of  this  suit,  and  held  the  same  adversely  to  the 
rights  of  the  plaintiii",  still  the  defendant,  in  this  case,  cannot 
avail  himself  of  the  possessi(jn  of  the  said  A.  B.,  unless  it  fur- 
ther appears,  from  the  evidence,  that  when  the  defendant 
took  possession  of  the  land,  he  acquired  the  rights  of  the 
said  A.  B.j  by  purchase  or  otherwise. 

§  23.  Deed  not  Necessary  to  Transfer  Possession. — The  jury 
are  instructed,  that  a  deed  is  not  necessary  to  transfer  the  pos- 
session of  land  held  adversely,  from  one  person  to  another, 
and  when  one  person  succeeds  to  the  possession  of  another, 
and  it  becomas  necessary  to  connect  the  possession  of  the  two, 
in  order  to  make  the  period  required  by  law  to  bar  the 
owner's  rights,  the  transfer  of  possession  may  be  shown  by 
parol  evidence;  in  such  cases  no  deed  is  required.  '  Webber 
vs.  Anderson,  73  Bl.,  439. 

§  24.  Temporary  Line  Fence. — In  this  case,  if  the  jury 
l)elie\-e,  from  the  evidence,  that  the  defendant  wrs  allowed 
by  the  owner  of  the  property  in  controversy  to  take  posses- 
sion of  it,  and  to  build  the  division  fence  off  the  line,  as  a 
matter  of  convenience  to  the  parties,  without  any  agreement 
or  intention  to  make  that  fence  the  permanent  boundary  line 
between  their  adjoining  lands,  and  that  the  defendant  took 
possession  with  the  consent  of  the  owner,  as  a  matter  of  tem- 
porary convenience,  and  without  any  understanding  that  the 
property  should  thereafter  belong  to  the  defendant,  then  such 
possession,  no  matter  how  long  continued,  will  not  bar  the 
right  of  the  plaintiff  to  claim  and  take  possession  of  the  land, 
if  he  has  otherwise  shown  liimself  entitled  to  the  same. 

If  you  believe,  from  the  evidence,  that  the  fence  in  ques- 
tion, claimed  by  the  defendant  to  be  the  line  fence  between 
his  land  and  that  of  the  plaintiff,  does  not  stand  upon  the  true 
survey  line  between  said  lands;  and  if  you  further  believe 
from  the  evidence,  that  the  fence  was  placed  where  it  now  is 
by  agreement  of  the  parties,  merely  for  the  convenience  of 
working  the  land,  and  not  for  the  purpose  of  marking  the  boun- 
daries according  to  title,  then  neither  party  would   be    bound 


190  EJECTMENT. 

by  the  existence  of  the  fence,  as  establishhig  either  an  agreed 
boundary  line  or  adverse  possession  to  the  lands  in  contro- 
versy.    Soule  vs.  Barlow,  49  Yt,  329. 

§  25.  Line  Fence  Agreed  Upon. — The  jury  are  instructed, 
that  it  is  perfectly  competent  for  parties  owning  adjoining 
lands  to  settle,  by  agreement,  where  the  division  line  shall  be. 

And,  in  this  case,  if  you  believe,  from  the  evidence,  that  the 
plaintiff  and  defendant  owned  adjoining  tracts  of  land,  of  which 
the  land  in  controversy  formed  a  part,  and  that  they  mutually 
agreed  upon  the  dividing  line,  and  established  it  as  between 
themselves,  and  afterwards  occnpy  according  to  such  line,  then 
it  is  wholly  immaterial  where  the  survey  would  put  the  line, 
as  each  party  would  be  bound  by  his  agreement. 

And  in  determining  whether  there  was  such  an  agreement 
and  establishing  of  the  lina,  it  is  competent  for  you  to  take 
into  consideration  the  act3  and  statemjnts  of  the  parties,  the 
acts  done  by  each,  and  the  fixing  and  adjustment  of  fences, 
and  imorovemants  by  them,  under  such  alleged  agreemant,  if 
any  such  are  proved,  togather  with  all  the  other  evidence  and 
facts  an  1  circumstances  proved  on  the  trial.  Cutler  vs.  Calli- 
so)i,  72  III,  113;  Tamm  vs.  Kellogg,  49  Mo.,  118;  Smith  vs. 
Ilunllton,  20  Mich.,  433;  Terry  vs.  Chandler,  16  K  Y.,  354; 
Jolce  vs.    Williams,  26  Mich.,  332. 

You  are  Instructed  that  the  fact,  if  proved,  that  a  line  fence 
was  built  on  the  line  clalmjd  by  the  defendant  as  the  agreed 
line,  and  that  the  ]3arties  occupied  up  to  the  fence  for  a  num- 
ber of  years,  would  not  alone  prove  that  the  fence  was  built 
iipon  the  true  line,  or  that  that  line  was  established  by  agree- 
ment of  the  parties,  or  by  the  persons  under  whom  they  hold. 
In  order  that  that  line  shall  be  conclusive  upon  the  parties, 
the  jury  must  believe,  from  the  evidence,  either  that  the  fence 
was  built  upon  the  true  line,  that  the  adjoining  owners  in  an 
honest  attempt  to  fix  the  dividing  line  between  their  lands, 
agreed  upon  that  line  as  the  boundary  line  between  them,  or 
that  the  defendant,  for  twenty  years  or  more,  occupied  the  land 
in  controversy  adversely,  as  explained  in  these  instructions 
upon  that  point.     Ghajpmin  vs.  Cooks,  41  Mich.,  595. 

§  26.     Division  Line  Agreed  upon  Through  3Iistake. — The  law 


EJECTMENT.  191 

is  tliat  whore  parties  agree  upon  a  division  line  between  their 
lands,  and  they  occupy  np  to  such  line  for  a  period  of  twenty 
years,  they  will  be  held  to  the  line  so  established,  although 
the  line  be  not  the  true  line,  and  was  agreed  upon  by  mutual 
mistake.  Smith  vs.  31cKa;/,  30  Ohio  St.,  409;  Yutzer  vs. 
Thomcm,  17  Ohio  St.,  130;  Bader  vs.  Zeise,  44  Wis.,  96. 

The  law  is  that  if  two  adjoining  proprietors  occupy  on  the 
opposite  sides,  and  up  to  what  they  both  erroneously  suppose 
to  he  the  true  dividing  line,  with  no  intent  on  the  part  of 
either  to  claim  b.^yond  the  true  line,  such  possession  would 
not  be  an  adverse  possession  of  the  land  thus  erroneously  occu- 
pied.    Houx  vs.  JBatteen,  68  Mo.,  84. 

You  are  instructed,  as  a  matter  of  law,  that  where  one  of  two 
adjoining  land  owners  has  possession  for  over  twenty  years  of 
a  portion  of  the  other's  land,  by  reason  of  the  division  fence 
not  being  on  the  line,  such  possession  will  not  bar  a  recovery 
of  the  land  by  the  true  owner,  unless  the  fence  was  agreed 
upon  as  tlie  boundary  line,  and  the  possession  taken  and  held 
in  pursuance  of  such  agreement,  or  unless  such  possession  is 
adverse  to  the  title  of  the  true  owner,  as  explained  in  these 
instructions  upon  that  point.  MoNamara  vs.  Seatoii^  82  111., 
468. 

§  27.  Possession  under  Color  of  Title — Payment  of  Taxes — 
Illinois. — The  court  instructs  the  jury,  that  the  statute  of  this 
state  provides  that  every  person  in  the  actual  possession  of 
lands,  under  claim  and  color  of  title  made  in  good  faith,  and 
who  shall,  for  seven  successive  years,  continue  in  such  pos- 
session, and  shall  also,  during  that  time,  pay  all  taxes  legally 
assessed  on  such  lands,  shall  be  held  and  adjudged  to  be  the 
legal  owner  thereof  to  the  extent  and  according  to  the  pur- 
port of  his  paper  title;  and  all  persons  holding  under  such 
possession,  by  purchase,  devise  or  descent,  before  said 
seven  years  shall  have  expired,  and  who  shall  continue  sucli 
possession,  and  continue  to  pay  the  taxes,  so  as  to  complete 
the  same  possession  and  payment  of  taxes  for  the  said  term  of 
seven  years,  are  entitled  to  the  benefit  of  tlie  same  statute. 

§  28.  Burden  of  Proof — Limitations. — The  jury  are  instructed, 
that  where  a  party  sets  up  the  statute  of  limitations  to  bar  an 


192  EJECTMENT. 

otherwise  legal  title,  the  law  holds  him  to  a  strict  compliance 
with  every  requirement  of  the  statute,  and  if  he  fails  to  prove 
such  compliance,  the  statute  will  avail  him  nothing. 

The  court  instructs  you,  that  the  burden  of  ])roof  is  upon 
the  party  setting  up  the  statute  of  limitations  to  bar  a 
recovery  by  the  person  holding  the  paper  title  to  lands,  to 
show  affirmatively,  by  a  preponderance  of  evidence,  the  pa}'- 
ment  by  him,  or  some  one  for  him,  of  all  taxes  legally  assessed 
upon  the  land,  and  under  color  of  title  for  seven  successive 
years;  and  in  this  case,  if  the  jury  believe,  from  the  evidence, 
that  the  defendant  has  failed  to  show  color  of  title  in  himself, 
or  in  those  under  whom  he  holds,  together  with  payment  of 
all  the  taxes  legally  assessed  in  each  and  every  year  for  seven 
successive  years,  by  the  person  or  persons  liaving  such  color 
of  title,  then  the  statute  of  limitations  cannot  avail  the 
defendant. 

That  when  the  benefit  of  the  statute  of  limitations  is 
claimed  under  color  of  title  and  payment  of  taxes  for  seven 
successive  years,  the  party  claiming  such  baneHt  must  show 
affirmatively  the  payment  of  all  taxes  legally  assessed  on  the 
premises  in  question  during  said  period,  and  if  he  fails  to 
show  the  payment  of  any  such  tax,  no  matter  how  small  in 
^amount  it  may  be,  the  benefit  of  the  statute  must  fail. 

§  29.  "VNHiat  Miist  be  Shown  Under  Limitation  Law. — The  court 
instructs  the  jury,  that  three  things  must  concur  in  oi'der  that 
the  statute  of  limitations,  set  up  by  the  defendant  in  this  case, 
may  avail  as  a  bar  to  the  plaintiff's  right  of  recovery;  pro- 
vided, you  believe,  from  the  evidence,  under  the  instruction 
of  the  court,  that  the  plaintiff  has  shown  title,  by  deed,  to  the 
premises  in  question  in  himself  : 

1st.  There  must  be  what  is  called  in  law,  color  of  title;  or 
in  other  words,  a  conveyance,  purporting  on  its  face  to  convey 
the  title  to  said  premises  to  the  defendant,  or  to  some  one 
under  whom  he  claims. 

2d.  The  defendant,  or  some  party  under  whom  he  claims, 
or  the  defendant,  together  with  such  person,  must  have  had 
actual  possession  of  the  premises  in  controversy  for  the  s]iace 
of  seven  successive  years  previous  to  the  commencement  of 
this  suit. 


EJECTMENT.  193 

3d.  That  tlie  person  having  the  color  of  title  must  have 
paid  all  the  taxes  legally  assessed  against  the  said  premises 
during  said  period  of  seven  years;  and  if  the  jury  believe,  from 
the  evidence,  that  either  of  these  three  things  are  wanting, 
the  statute  of  limitation  cannot  avail  as  a  defense. 

The  court  instructs  you,  as  a  matter  of  law,  that,  as  regards 
the  premises  known  and  described  as,  etc.,  the  defendant  has 
not  shown  any  conveyance  or  color  of  title  to  himself,  or  to 
any  one  through  whom  he  claims,  made  seven  years  before 
the  commencement  of  this  suit;  and  so  far  as  these  premises 
are  concerned,  the  statute  of  limitations,  set  up  in  this  case, 
cannot  avail  the  defendant. 

§  30.  AVhat  Constitutes  Possession. — The  court  instructs  the 
jury,  that  it  is  not  necessary  that  land  should  be  inclosed  with 
a  fence,  or  that  a  house  should  be  erected  upon,  or  that  it 
should  be  reduced  to  cultivation,  to  constitute  possession  of  it. 
Such  improvements  or  acts  of  dominion  over  the  land,  as  will 
indicate  to  persons  residing  in  the  immediate  neighborhood, 
who  has  the  exclusive  control  and  management  of  the  laud, 
will  be  sufficient  to  constitute  possession. 

That  where  land  is  appropriated  to  such  uses  as  it  is  natu- 
rally fitted  for,  and  the  manner  in  which  it  is  used,  by  the  per- 
sons claiming  title,  is  such  as  to  notify  the  public  that  such 
person  has  asserted  dominion  over  it,  this  will  constitute  pos- 
session.    IluUbard  vs.  Kiddo,  87  111.,  578. 

§  31.  Possession  of  Woodland. — The  jury  are  instructed,  that 
the  rule  of  law  is,  that  when  the  land  in  controversy  is  a  tim- 
ber lot,  and  it  is  exclusively  controlled  and  used  to  supply  a 
farm  in  the  neighborhood  with  fuel,  or  with  posts  and  rails, 
this  will  constitute  possession,  although  the  land  does  not  join 
the  farm  and  is  not  inclosed. 

You  are  instructed,  that  actual  possession  of  land  may  arise 
in  any  of  the  different  ways  of  improving  it,  and  which  are 
open  and  notorious  in  their  character,  and  which  show  an  in- 
tention to  appropriate  it  to  some  useful  purpose,  and  indicate 
an  exclusive  use  and  control  of  the  property  by  the  person 
claiming  possession. 

The  possession  of  land  may  be  held  in  different  modes — by 
13 


19i  EJECTMENT. 

inclosure,  bj  cultivation,  by  the  erection  of  buildings  or  otlier 
improvements,  or  in  any  mode  that  clearly  indicates  an  ex- 
clusive appropriation  of  the  property  by  the  person  claiming 
to  hold  it.      Tt'uesdale  vs.  Ford,  37  111.,  2  LO. 

§  32.  Inclosure  by  Natural  Objects. — If  the  jury  believe,  from 
the  evidence,  that  a  slough  on  the  east  side  of  the  premises  in 
question  served  substantially  for  the  pur])ose  of  a  fence,  and, 
in  connection  with  otlier  fences,  made  an  inclosure  of  said 
premises,  the  slough  should  be  considered  a  fence,  and  the 
Held  an  inclosed  held,  for  the  purpose  of  this  trial.  JBruma- 
ghn  vs.  Bradshaw,  39  Cal.,  24, 

The  court  instructs  you  that  a  person  may  take  and  hold 
possession  of  property  by  inclosing  the  same,  and  for  that  pur- 
pose it  is  not  neces&ary  that  a  fence  should  surround  every 
portion  of  the  land.  The  boundaries  of  a  portion  thereof  may 
be  protected  by  a  fence,  and  the  remainder  defined  and  piro- 
tected  by  natural  objects,  such  as  a  lake,  a  river  or  other  water- 
course, and  such  objects,  when  they  are  apparent  and  serve 
the  purposes  of  a  fence,  are  as  effective  in  defining  the  limits 
of  possession  as  a  fence. 

§  33.  Possession  not  under  Color  of  Title. — The  court  in- 
structs the  jury,  that  where  a  person  claims  possession  of  real 
estate  without  a  deed  or  instrument  in  writing  calling  for 
boundaries,  his  possession  will  not  extend  beyond  what  he  has 
inclosed  or  actually  occupies.  JEge  vs.  Medlaj\  82  l^enn.  St., 
86;  Peterso)iw&.  MoCullough,  50  Ind.,  35;  III.  C.  Rd.  Co.  vs. 
Ind.  &  111.  G.  By.  Co.,  85  III,  211. 

You  are  instructed,  that  when  a  person  has  neither  title  nor 
color  of  title  to  an  inclosed  tract  of  land,  the  fact  that  he, 
during  several  years,  cut  fire-wood,  and  made  rails  from  the 
timber  on  it  for  the  use  of  his  farm,  does  not  necessarily  show 
actual  possession.  Such  acts,  if  isolated  and  only  occasional, 
may  as  properly  be  referred  to  continuous  acts  of  trespass  as 
indicating  possession.  To  constitute  possession,  such  acts 
should  be  exclusive  and  under  claim  of  title.  Austin  vs.  Rnst, 
73  111.,  491;  Sepulveda  vs.  Seinilveda,  39  Cal.,  13;  Miller  vs. 
L.  J.  Ed.  Co.,  71  N.  Y.,  3.^0;  Pullen  vs.  Hoplins,  Lea 
rTenn.),  741;    Williai?is  vs.  Wallace,  78  K  C,  354. 


EJECTMENT.  195 

Though  you  may  believe,  from  the  evidence,  that  the  de- 
fendant went  upon  the  land  in  question  in  the  spring  of,  etc., 
for  the  purpose  of  taking  possession  of  the  whole  tract,  and 
make  improvements  thereon,  claiming  the  whole  tract,  still, 
if  the  jury  further  believe,  from  the  evidence,  that  at  that 
time  defendant  had  no  deed,  lease  or  other  written  evidence 
of  title  to  the  premises,  then  such  possession,  in  law,  is  con- 
fined to  the  quantity  of  ground  actually  taken  possession  of  by 
the  defendant.     Humphries  vs.  Uaffniaii^  33  Ohio  St.,  395. 

§  34:.  Possession  Accojxling  to  Boundaries  in  Title  Papers. — The 
court  instructs  the  jury,  that  where  a  party  has  title,  or  color 
of  title,  to  woodland,  and  uses  the  land  for  the  purpose  of  ob- 
taining wood  for  fuel  or  fencing,  for  a  farm  in  the  neighbor- 
hood, under  a  claim  of  ownership,  this  will  constitute  a  pos- 
session; and  so,  if  a  person  holding  a  deed  for  land,  enters  and 
clears  off,  breaks  up  or  improves  a  part,  with  intent  to  follow 
up  such  act  with  other  improvements  on  the  land,  this  will  be 
a  possession  of  the  whole.  Wilson  vs.  Williams,  52  Miss., 
487;  ^cott  vs.  Delcmey,  87  111.,  146;  Barger  vs.  Bobhs,  67  111.^ 
592;  Fugate  vs.  Pierce,  49  Mo.,  441. 

If  you  believe,  from  the  evidence,  that  some  time  on  or 
about,  etc.,  the  defendant  went  onto  a  portion  of  the  land  in 
controvers}',  under  his  deed,  introduced  in  evidence,  and  broke 
up  a  portion  of  the  land,  and  that  at  that  time  there  was  no 
one  else  in  the  actual  possession  of  said  tract,  or  any  part  of 
it,  then  such  breaking  and  possession  would  extend  to  all 
the  land  embraced  in  his  deed.  Blancliard  vs.  Pratt,  37  111., 
243;  Hmnphries  vs.  Huffman,  33  Ohio  St.,  395;  Lynde  vs. 
Williams,  68  Mo.,  360. 

You  are  instructed,  that  a  party  who  enters  into  the  posses- 
sion of  real  estate,  under  a  conveyance  from  a  person  having 
no  title,  or  under  a  paper  purporting  to  be  a  deed,  but  having 
no  seal,  is  presumed  to  enter  according  to  the  description  in 
such  deed  or  paper,  and  his  occupancy  of  a  part,  claiming  the 
whole,  is  construed  as  a  possession  of  the  entire  tract  which 
the  instrument  or  paper  purports  to  convey. 

The  jury  are  instructed,  as  a  matter  of  law,  that  if  a  person 
enters  upon  uninclosed  and  unimproved  land  under  color  of 
title  which  describes  the  extent  of  his  claim  by  metes  and 


198  EJECTMENT. 

bounds,  and  he  actually  improves  and  occupies  a  part  thereof 
adversely  to  the  true  owner,  claiming  the  whole  tract,  this 
will  be  held  to  constitute  possession  of  the  whole  tract,  to  the 
extent  of  the  boundaries  in  his  paper  title,  although  a  portion 
of  the  tract  may  not  be  actually  improved  or  occui)ied  by 
him,  provided  no  other  person  is  in  the  actual  possession  of 
the  part  not  occupied  or  improved  by  him. 

§  35.  Notice  by  Possession. — The  jury  are  instructed,  that 
possession  under  an  unrecorded  deed,  to  be  notice  to  subse- 
quent honafide  purchasers,  must  be  open,  visible  and  exclu- 
sive; and  must  be  such  as  to  apprise  the  community  that  the 
occupant  has  appropriated  the  property  to  his  own  exclusive 
use. 

That  where  a  person  is  in  the  actual,  open  and  notorious 
possession  of  land,  claiming  to  own  the  same,  this  would 
afford  notice  to  the  world  of  all  his  rights  and  equities  in  the 
same.  Siro7ig  ys.  Shea,  83  111.,  575;  Fraiikllii  vs.  JSfewsome, 
53  Ga.,  580. 

That  when  a  party  is  in  the  actual,  open  and  visible  posses- 
sion of  land,  under  an  unrecorded  deed,  his  possession  will 
afford  notice  to  the  world  of  his  rights  to  the  land,  whatever 
they  may  be,  equally  with  that  which  would  have  been  given 
by  the  recording  of  his  deed.  Walde?i  vs.  Gridlei/,  36  111., 
523;  Sjgitler  vs.  Scofield,  43  la.,  571. 


CHAPTER  XVIII. 

ESTOPPEL. 


Sec.    1.  General  rule. 

2.  Intention  not  essential. 

S.  Knowinsly  permitting  another  to  deal  with  property  as  his  own. 

4.  Representation  by  the  acts  of  a  party. 

5.  Representations  must  be  acted  upon. 

6.  Must  be  a  fraudulent  purpose  or  result. 

7.  Injury  must  be  shown. 

§  1.  General  Rule. — The  court  instructs  tlie  jury,  that  as  a 
general  rule,  a  party  will  be  estopped  from  denying  his  own 
acts  and  admissions,  which  were  expressly  designed  to  influ- 
ence the  conduct  of  another,  and  whicli  did  so  influence  it, 
and  when  such  denial  will  operate  to  tlie  injury  of  the  person 
so  acting.  1  Greenlf.  onEv.,  §  207;  Kinnear  vs.  MacJ^ey,  S."? 
111.,  96;  KmxYQ.  Clifford,  38  Wis.,  651;  Allum  vs.  Ferrij, 
68  Me.,  232;   Creque  vs,  Sears,  17  Hun  (N".  Y.),  123. 

The  court  further  instructs  you,  that  when  a  person,  by  his 
words  or  conduct,  voluntarily  causes  another  to  believe  in  the 
existence  of  a  certain  state  of  things,  and  thereby  induces 
him  to  act  on  that  belief  so  as  to  change  his  previous  condi- 
tion, the  person  inducing  such  belief  will  be  estopped  from 
afterwards  denying  the  existence  of  such  state  of  things,  to 
the  prejudice  of  the  person  so  acting.  People  vs.  Brown,  67 
111.,  435;  Redman  vs.  Graham,  80  ]Sr.  C,  231;  Reedy  vs. 
Brunner,  60  Ga.,  107;  Harden  vs.  Joice,  2  Kas.,  318;  Wiii- 
terinJc  vs.  Maynard,  47  la.,  366. 

That  any  statement  or  admission  by  one  person,  intended  to 
influence  the  conduct  of  another,  if  acted  upon  by  the  latter, 
will  be  binding  upon  the  former;  and  it  is  a  nvitter  of  no 
importance  whether  such  representations  are  made  in  direct 
language  to  the  plaintiff  himself,  or  wliether  they  may  be 
implied  from  the  conduct  of  the  ]iarty  sought  to  be  charged; 
provided,  such  conduct  was  intended  to  influence  the  actions 
of  tbe  other,  and  did  so  influence  it,  to  the  latter's  prejudice. 

(197) 


198  ESTOPPEL. 

§  2.  Intention  not  Essential. — The  jury  are  instructed,  that 
to  constitute  an  estoppel,  it  is  not  necessary  that  the  party 
should  design  to  mislead;  it  is  enongh  if  the  act  of  declara- 
tion was  calculated  to,  and  did,  in  fact,  mislead  another  to  his 
injury,  while  acting  in  good  faith  and  with  reasonable  diligence. 
Blair  vs.  Wait,  69  JN".  Y.,  113;  Mayer  vs.  Erhardt,  88  III, 
452. 

§  3.  Knowingly  Permitting  Another  to  Deal  with  Property  as 
Owner. — That  if  the  true  owner  of  property  stands  by  and 
knowingly  suffers  another  to  sell  his  property,  under  a  claim 
of  ownership,  and  does  not  give  notice  of  his  title  to  the  party 
purchasing,  he  will  be  estopped  from  afterwards  setting  up  his 
title  to  the  property.  Colwell  vs.  Brower,  75  111.,  516;  Car- 
roll vs.  Turner,  54  Ga.,  177. 

The  jury  are  instructed,  that  whenever  the  circumstances 
are  such  as  to  show  that  the  true  owner  of  property  knows 
tJiat  another  claims  to  own  his  property,  and  is  selling  or 
incumbering  it  to  an  innocent  party,  and  he  fails  to  give  notice 
of  his  title,  the  law  will  regard  the  silence  of  the  true  owner 
as  a  fraud  upon  the  innocent  party,  and  he  will  be  estopped 
from  afterwards  setting  np  his  title  to  defeat  such  innocent 
party.  ISebright  vs.  Moore,  33  Mich.,  92;  Sheeny  vs.  Mal- 
lory,  62  Mo..  485. 

In  this  case,  although  you  may  believe,  from  the  evidence, 
that  plaintiff  was,  in  fact,  the  owner  of  the  property  in  ques- 
tion, yet,  if  you  further  believe,  from  the  evidence,  that  he 
voluntarily  and  knowingly  permitted  and  allowed  A.  E.  to 
have  the  possession  of  the  property,  and  to  exercise  such  acts 
of  ownership  over  it,  and  to  so  nse,  manage  and  control  the 
property  as  to  authorize  and  justify  an  ordinarily  prudent  man 
in  supposing  that  A.  E.  was,  in  fact,  the  owner  of  the  property; 
and  if  you  further  believe,  from  the  evidence,  that  the  defend- 
ant, in  good  faith,  bought  the  property  in  question  from  the 
said  A.  E.,  supposing  and  believing  that  he  was  the  owner 
thereof,  then  the  plaintiff  is  estopped  from  now  setting  up  a 
claim  to  the  property  on  the  ground  that  the  said  A.  E.  was 
not  such  owner. 

If  you  believe,  from  the  evidence,  that  before  the  making 
of  the  mortgage  in  question,  the  defendant  represented  to  the 


ESTOPPEL.  199 

]")lainti(T  that  A.  B.,  tlic  mortgagor,  was  the  owner  of  the  horse 
in  question,  and  that  the  plaintiff  believed  such  representations, 
and,  relying  upon  the  truth  thereof,  loaned  A.  B.  money,  and 
in  good  faith  took  the  mortgage  to  secure  said  loan,  then  it  is 
wholly  immaterial  whether  A.  B.  was  really  the  owner  of  the 
horse  or  not,  as  against  the  defendant,  for  the  reason  that  he 
is  now  estopped  from  denying  such  ownership  as  against  the 
plaintiff. 

§  4.  Representations  by  the  Acts  of  a  Party. — That  if  a  person 
knowingly  and  voluntarily  so  conducts  himself  in  relation  to 
his  business,  as  to  justify  persons  dealing  with  him  in  suppos- 
ing and  believing  that  a  certain  state  of  facts  exist,  and  such 
persons  do  deal  with  him,  relying  on  that  inference  and  be- 
lief, the  person  so  conducting  himself  will  not  afterwards  be 
permitted  to  denj'-  that  such  state  of  facts  did  exist,  to  the 
prejudice  of  persons  acting  upon  such  belief. 

If  a  married  woman  is  in  the  possession  of  property,  claim- 
ing to  own  and  control  the  same,  and  on  her  declaration  of  own- 
ership employs  a  party  to  make  improvements  on  the  same, 
under  the  belief  that  it  is  her  separate  propert}^,  she  will  be 
estopped  from  denying  that  she  owned  it,  when  sued  for  the 
value  of  the  labor  performed.     Nixon  vs.  Halley,  78  111.,  611. 

§  5.  Representation  Must  be  Acted  on. — Before  a  party  can 
be  estopped  from  denying  the  truth  of  any  statement  or  ad- 
mission formerly  made  by  him,  the  jury  must  believe,  from 
the  evidence,  that  such  statements  or  admissions  have  induced 
the  other  party  to  act  differently  from  what  lie  otherwise 
would  have  done,  had  not  such  statements  or  admissions  been 
made,  and  that  to  permit  such  denial  would  now  prejudice  the 
rights  of  such  party  to  his  injury.  1  Greenl.  Ev.,  §  209; 
Henry  vs.  Meeh,  16  IST.  E.  Eep.,  606. 

§  6.  Must  be  a  Fraudulent  Purpose  or  Result. — The  jury  are 
instructed  that,  to  conclude  a  party  by  an  estoppel,  there  must 
be  a  fraudulent  purpose  on  the  part  of  the  party  against  whom 
it  is  to  be  applied,  or  his  acts  must  produce  a  fraudulent  result; 
there  must  be  a  change  of  conduct  induced  by  the  acts  of  the 
party  estopped,  to  the  injury  of  another,  in  order  to  prevent 
''im  from  showing  the  truth. 


200  ESTOPPEL. 

The  doctrine  of  estonpcl  is  based  uj^on  a  fraudulent  purpose 
and  a  fraudulent  result,  and  if  tlie  element  of  fraud  is  wanting 
there  is  no  estoppel.     Chandler  vs.    White,  84  111.,  435. 

That  the  doctrine  of  eqnitable  estoppels  is  based  upon  a 
fraudulent  purpose  and  a  fraudulent  result ;  if,  therefore,  tlie 
element  of  fraud  is  wanting,  there  is  no  estoppel ;  if  both 
parties  were  equally  cognizant  of  all  the  facts  and  the  declara- 
tion>,  or  silence  of  one  party  produced  no  change  in  the  con- 
duct of  the  other,  then  there  is  no  estoppel.  Dorlarque  vs. 
Cress,  71  III,  380. 

§  Y.  Injury  Mxist  Be  ShowTi. — That  a  person  is  under  no  legal 
obligation  to  tell  the  truth,  at  all  times,  regarding  his  own 
business  or  property;  and  although  the  jury  may  believe,  from 
the  evidence,  that  the  plaintiff  told  the  defendant  at  one  time 
{fhat  the  said  horse  belonged  to  A.  B.),  still,  if  the  jury  believe, 
from  all  the  evidence  in  the  case,  that  that  statement  was 
untrue,  or  contrary  to  the  fact,  then  the  plaintiff  will  not  be 
bound  by  such  statement,  unless  the  jury  further  believe,  from 
the  evidence,  that  the  defendant,  believing  the  statement  to 
be  true,  has  acted  upon  it  and  changed  his  condition,  so  that 
now  he  will  be  injured,  or  in  some  manner  prejudiced,  by 
permitting  the  truth  to  prevail. 


CHAPTER  XIX. 
FOKCIBLE  ENTRY  AND  DETAINER. 


Sec.     1.  Title  not  involved. 

2.  Entry  by  force  not  necessary. 

3.  Entry  by  force  or  threats  essential. 

4.  The  real  question  in  issue. 

5.  Possession  by  tenant. 

6.  What  constitutes  possession. 

7.  Possession  when  actual  and  real. 

8.  What  not  possession. 

9.  Burden  of  proof. 

Note. — The  following  instructions  are  believed  to  present  the  general 
rules  of  law  pertaining  to  this  action;  but  these  laws  differ  in  the  different 
states. 

§  1.  Title  not  Involved. — The  court  instructs  the  jury,  that 
in  this  action  the  title  to  the  property  in  question  is  not 
involved;  the  material  questions  in  the  case  for  the  jury  to 
determine  are  the  right  to  the  possession  of  the  premises. 
Myers  vs.  Koening,  5  Neb.,  419. 

You  are  instructed,  that  the  law  requires  a  person  who 
claims  title  and  the  right  to  the  possession  of  premises  in  the 
actual,  peaceable  possession  of  another,  to  resort  to  his  Jegal 
remedies  instead  of  taking  the  law  into  his  own  hands,  and 
gaining  such  possession  by  force,  or  by  invading  the  actual, 
peaceable  possession  of  another. 

That  although  you  may  believe,  from  the  evidence,  that 
the  defendant  was  the  legal  owner  of  the  premises  in  ques- 
tion, and  was  lawfully  entitled  to  the  possession  thereof, 
still,  if  you  further  believe,  from  the  evidence,  that  plaintilf 
was  in  the  actual,  exclusive  and  peaceable  possession  of  the 
premises,  the  defendant  would  have  no  right  to  forcibly  enter 
and  expel  the  plaintiff  therefrom.  Cooley  on  Torts,  323; 
Dilworth  vs.  Fee,  52  Mo.,  130;  Ruftalin  vs.  Misner,  70  111., 
205. 

You  are  instructed,  as  a  matter  of  law,  that  in  this  state  the 

(201) 


202  FOKCIULE     ENTET     AND     DETAINER. 

owner  in  fee  of  lands  is  not  permitted  to  enter  upon  the  pos- 
session of  tlie  same  while  they  are  in  the  actual  and  peaceable 
occupation  of  another,  against  the  will  of  the  latter,  and  if  he 
does  so,  the  law  will  require  him  to  restore  the  possession  to 
such  occupier. 

§  2.  Entry  by  Force  not  Necessary. — The  court  instructs  the 
Jury,  that  it  is  not  necessary,  in  order  to  constitute  a  forcible 
entry,  that  actual  force  or  violence  should  be  used;  any  entry 
upon  the  possession  of  another,  without  his  consent  and 
against  his  will,  is  a  forcible  entry,  within  the  meaning  of  the 
law. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  was  in 
the  actual  and  peaceable  possession  of  the  premises  in  question, 
on,  etc.,  and  that  on  that  day  the  defendant  intruded  into  and 
took  possession  of  said  premises,  against  the  will  and  without 
the  consent  of  the  plaintiff;  and  if  you  further  believe,  from 
the  evidence,  that  the  plaintiff,  before  the  commencement 
of  this  suit,  made  a  written  demand  upon  the  defendant  to 
surrender  the  possession  of  said  premises  {or  according  to  the 
reqtdrements  of  the  statute)^  and  that  the  defendant  refused  to 
comply  with  such  demand,  then  you  will  find  a  verdict  for  the 
plaintiff. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  was  in 
the  peaceable  possession  of  the  premises  sued  for,  and  that 
while  he  was  so  in  possession,  the  defendant,  at  the  time 
alleged,  entered  upon  such  possession,  without  the  consent 
and  against  the  will  of  the  plaintiff,  and  still  holds  such  pos- 
session; and  if  you  further  believe,  from  the  evidence,  that 
before  the  commencement  of  this  suit,  the  plaintiff  made  a 
written  demand  upon  the  defendant  for  the  possession  of  said 
premises  {or  following  the  requirements  of  the  statute),  then 
you  should  find  a  verdict  for  the  plaintiff.  Ci'off  vs.  Bal- 
linger,  18  111.,  200;  McCdrtney  vs.  Auer,  50  Mo.,  395. 

§  3.  Entry  by  Force  or  Threats  Essential. — The  jury  are 
instructed  that  to  authorize  a  verdict  against  the  defendant, 
the  jury  must  believe  from  the  evidence  that  the  plaintiff 
w^as  in  the  actual  possession  of  the  premises  prior  to  the 
alleged  forcible  entry  or  detention,  and  that  the  defendant 


rORCILlLE    EXTKY     AND    DETAINEE.  203 

took  the  possess'on  with  force  and  violence,  or  by  such  a  show 
of  force  and  threats  as  was  i-easonably  calculated  to  intimidate 
the  plaintiff,  or  else  that  the  defendant  kept  such  possession 
unlawfully  and  by  force  and  violence,  or  by  threatening  the 
same.     Archey  vs.  Knight,  61  Ind.,  311. 

The  offenses  of  forcible  entry  and  forcible  detainer  are 
entirely  distinct.  Every  forcible  entry  is  forbidden  by  law, 
and  is,  therefore,  unlawful,  wiiether  the  person  taking  such 
forcible  possession  is  legally  entitled  to  the  possession  or  not. 
But  every  forcible  detainer  is  not  forbidden  by  law;  if  a  ])er- 
son  gains  peaceable  possession  and  he  is  then  legally  entitled 
to  possession,  he  may  hold  such  possession  by  force.  Iloff- 
onan  vs.  Harrington,  22  Mich,,  52. 

The  law  is  that  if  a  person  obtains  an  entry  upon  the  pos- 
session of  another  by  stealth  or  stratagem,  or  in  any  other  way 
without  actual  force  or  violence,  and  the  jury  believe,  from 
the  evidence,  that  such  entry  was  for  the  piurpose  and  with  the 
intention  of  forcibly  expelling  the  person  in  possession,  and 
the  entry  is  followed  up  by  an  actual  expulsion  of  such  per- 
son by  means  of  personal  threats  or  violence  or  superior  force, 
it  will  amount  to  forcible  entry.  Seitz  vs.  Miles,  16  Mich., 
456;  People  vs.  Sinith,  24  Barb.  (S.  C),  16. 

You  are  instructed  that  if  you  believe,  from  the  evidence, 
that  some  time  on  and  about,  etc.,  the  premises  in  question 
were  vacant  and  unoccupied,  and  that  the  plaintiff  then  made 
a  peaceable  entry  into  said  premises  under  a  l)ona  fide  Q\di\va.  of 
right,  and  inclosed  the  same  (with  a  wire  fence),  then  this  was 
an  actual  possession  by  him.  And  if  you  further  believe, 
from  the  evidence,  that  after  the  plaintiff  had  so  taken  pos- 
session, the  defendant,  in  plaintiff's  absence,  took  possession  of 
said  premises  and  forcibly  tore  down  the  said  fence  and  refused 
to  surrender  possession  to  the  plaintiff  upon  his  demand,  this 
would  amount  to  a  forcible  entry  and  detainer  and  you  should 
find  the  defendant  guilty.  Canvpbell  vs.  Coonradt,  22  Ivans., 
704. 

§  4.  The  Real  Question  in  Issue. — The  jury  are  instructed 
that  whether  the  plaintiff  was  lawfully  or  unlawfully  in  the 
possession  of  the  premises,  is  a  matter  of  no  consequence  in 
this  suit.     The  material  questions  for  the  jury  to  determine  by 


204:  rORCIDLE    ENTKY    AND    DETAINEE. 

the  evidence,  are  whether,  in  fact,  at  the  time  in  question,  the 
plaintiff  was  in  the  actual,  peaceable  possession  of  the  premises 
in  question,  and  whether  the  defendant  entered  upon  such 
possession  against  the  will  of  the  plaintiff,  and  retains  such 
possession;  and  if  the  jury  find  both  these  points  in  favor  of 
the  plaintiff  {and  that  he  served  a  vnntten  demand  for  such 
possession  tipoti  the  defendant  before  the  commencemeyit  of  this 
suit),  then  the  jury  should  find  the  defendant  guilty.  Allen 
vs.  ToUas,  77  111.,  169;  Jones  vs.  Shay,  50  Cal.,  50S. 

If  you  believe,  from  the    evidence,  tliat  prior  and  up  to 

about  the day  of,  etc.,  the  plaintiff  was  in  the  actual  and 

peaceable  possession  of  the  premises  in  question,  either  by 
himself  or  his  agent,  and  that  while  the  plaintilf  was  so  in  pos- 
session, the  defendant  inti'uded  himself  into  such  possession 
without  the  consent  of  the  plaintiff,  such  intrusion  would  be 
unlawful,  and  will  render  the  defendant  liable  in  this  action; 
provided,  you  further  believe,  from  the  evidence,  that  {a 
written  demand  was  made  upon  him  for  the  possession  of  said 
premises)  before  the  commencement  of  this  suit,  and  that  he 
refused  to  surrender  such  possession. 

§  5.     Possession  by  Tenant. — If  the  Jury  believe,  from  the 

evidence,  that  prior  and  up  to  about  the day  of,  etc.,  the 

plaintiff  was  in  the  actual,  peaceable  possession  of  the  prem- 
ises in  question,  by  A.  B.,  his  tenant,  and  that,  on  or  about 
that  time,  the  said  A.  B.,  moved  out  without  the  knowledge 
of  the  plaintiff,  and  left  the  premises  temporarily  unoccupied, 
these  facts  would  not  authorize  the  defendant  to  enter  upon 
said  premises  and  take  the  possession  thereof  without  the  con- 
sent of  the  plaintiff;  and  if  the  jury  further  believe,  from 
the  evidence,  that  the  defendant  did  so  take  possession,  then 
the  plaintiff  would  be  entitled  to  a  verdict  {provided,  tlie  evi- 
dence shows  that  the  plaintiff  caused  a  written  demand  for 
such  possession  to  he  Tnade  on  the  defendant  hefore  commenc- 
ing this  suit,  and  that  the  defendant  refused  to  surrender  such 
possession). 

If  you  believe,  from  the  evidence,  that  -ju-ior  and  up  to 

about  the day  of,  etc.,  the  said  plaintiff  was  in  the  actual 

peaceable  possession  of  said  premises  by  one  A.  B.,  his  tenant, 
and  that  at  or  about  that  time  the  said  tenant  and  the  defend- 


•ORCILLE    ENTKY    AND    DETAINER.  205 

ant,  for  tlio  purpose  of  deprlviiio;  the  plaintiU  of  sueli  possas- 
sion,  entered  into  a  eollusivc  agreement  or  arrangement,  by 
wliich  the  said  A.  B.  was  to  move  out  of  said  |»reniises,  and 
the  said  defendant  was  to  immediately  move  in,  and  that  this 
collusive  arrangement  was  carried  out,  and  the  defendant 
thereby  acquired  the  possession  of  such  premises,  such  pos- 
session would  be  unlawful,  and  render  the  defendant  liable  to 
be  removed  therefrom  in  an  action  of  forcible  entry  and  de- 
tainer (provided,  a  written  demand  was  made  by  the  plaintijQE 
upon  the  defendant  for  such  possession  before  comniinicing 
the  suit,  and  that  he  refused  to  surrender  such  possession). 

.  §  6.  Wliat  Constitutes  Possession. — The  Jury  are  instructed, 
that  it  is  not  necessary,  in  order  to  establish  possession  of  real 
estate,  that  the  claimant  should  actually  reside  upon  it  or  have 
it  inclosed  with  a  fence.  It  is  enough  if  the  party  is  doing 
such  acts  thereon  as  indicate  in  an  open,  public,  visible  man- 
ner, that  he  is  exercising  exclusive  control  over  the  land  under 
a  claim  of  right  to  such  exclusive  possession.  Pearson  vs. 
Eerr,  53  111.,  115. 

The  court  instructs  you,  as  a  matter  of  law,  that  in  order  to 
constitute  possession  of  real  estate,  it  is  not  necessary  that 
the  lands  shall  be  resided  upon  or  surrounded  by  a  fence. 
Any  act  that  will  equally  well  evince  an  intention  to  assert 
and  claim  possession,  such  as  raising  crops,  cutting  grass,  or 
herding  cattle  thereon — provided  such  herding  is  open  and 
e:i:clusive— will  constitute  such  a  possession  as  will  enable  the 
party  to  maintain  an  action  of  forcible  entry  and  detainer 
against  any  person  who,  without  the  consent  of  the  party  so 
in  possession,  enters  upon  such  possession  and  wrongfully  and 
forcibly  holds  the  same.  Goodrich  vs.  Van  Land'mghain,  46 
Cal.,  601;  Bradley  vs.  West,  60  Mo.,  59;  Pensoneau  vs. 
Bertlce,  82  111.,  161. 

§  7.  Possession — When  Aetna!  and  Real. — That  when  an  act- 
ual possession  is  relied  upon,  in  this  form  of  action,  it  must  be 
open,  public  and  exclusive,  or  it  will  not  be  sufficient;  and  in 
this  case,  if  the  jury  believe,  from  the  evidence,  that  the  acts 
which  are  relied  upon  by  the  plaintiff  to  indicate  possession, 
are  of  such  a  character  that  they  may  as  well  indicate  acts  of 


206  FORCIBLE    ENTRY    AND    DETAINER. 

trespass  as  an  assertion  of  ownership  or  riglit  to  possession, 
then  thej  are  not  sufficient  to  sustain  tliis  action. 

If  you  believe,  from  the  evidence,  that  at  the  time  of  the 
alleged  entry  by  defendant,  the  lands  in  question  were  uniii- 
closed  and  uncultivated,  and  were  used  in  common  by  the 
neighborhood  generally,  and  that  the  plaintiff  only  used  them 
as  the  other  inhabitants  did,  then  these  acts  alone  would  not 
indicate  such  a  possession  as  is  required  to  maintain  this  ac- 
tion. 

§  8.  What  Not  Possession. — If  the  jury  believe,  from  the 
evidence,  that  the  acts  from  which  plaintiff  claims  to  have  had 
possession  of  the  premises  were  not  of  such  a  character  as  to 
arrest  the  attention  of  those  in  the  vicinity,  or  to  indicate  to 
them  that  he  claimed  exclusive  possession,  but  were  such  as 
would  in  reality  indicate  to  the  neighbors  that  his  entries  upon 
the  land  were  only  casual,  and  not  under  any  claim  of  right  to 
the  exclusive  possession  thereof,  then  the  defendant  did  nut 
have  such  a  possession  as  would  sustain  this  action. 

If  you  believe,  from  the  evidence,  that  the  lands  in  ques- 
tion, at  the  time  of  the  alleged  entry  by  defendant,  were  un- 
inclosed  and  uncultivated,  and  that  plaintiff's  cattle  were  only 
pastured  upon  the  said  lands  occasionally,  with  other  cattle  in 
that  vicinity,  feeding  there  and  on  adjoining  lands,  and  that 
plaintiff"  only  occasionally  took  some  trees  from  the  land,  such 
acts  would  not  be  sufficient  to  show  the  possession  required  to 
maintain  this  action. 

If  you  believe,  from  the  evidence,  that  shortly  before  the 
alleged  entry  upon  said  premises  by  the  defendant,  and  befor<; 
any  entry  thereon  by  the  plaintiff,  the  defendant  had  been  in 
possession  of  the  said  house,  and  that  when  he  left  he  locked 
the  doors,  taking  with  him  the  key  to  the  outside  door,  and 
that  he  retained  possession  of  said  key;  and  if  you  further  be- 
lieve, from  the  evidence,  that  some  time  about  the,  etc.,  and 
while  the  defendant  had  said  key  in  his  possession,  or  under 
his  control,  the  plaintiff  effected  an  entrance  to  said  house 
through  one  of  the  windows,  without  the  knowledge  or  con- 
sent of  the  defendant,  then  a  possession  thus  acquired  by  the 
plaintiff  is  not  sufficient  to  sustain  this  action.  Cooley  on 
Torts,  322,  323;  SUinlein  v.  Ealstead,  42  Wis.,  422;  Wray 
vs.  Taylor,  56  Ala.,  188. 


FOKCir.LE    ENTKY    AND    DETAINER.  207 

§  9.  Burden  of  Proof. — The  court  instructs  the  jury,  that  in 
this  case  the  burden  of  proof  is  upon  the  plaintiff,  and  to  sustain 
his  action  he  must  prove,  by  a  preponderance  of  the  evidence, 
that  he  was  in  the  actual,  open  and  exclusive  possession  of  the 
premises  at  the  time  of  the  alleged  entry  by  defendant,  and 
that  he,  while  the  plaintiff  was  so  in  possession,  intruded  him- 
self into  said  possession  against  the  consent  of  the  plaintiff. 
And  if  the  jury  believe,  from  the  evidence,  that  the  plaintiff' 
was  not  in  the  actual  exclusive  possession  of  the  premises  at 
the  time  of  the  alleged  entry  of  the  defendant,  the  jury  should 
find  the  issues  for  the  defendant. 


CHAPTER  XX. 

STATUTE  OF  FKAUDS. 


Skc.  1.     What  is  a  promise  to  pay  the  debt  of  another. 

2.  "What  is  not  a  promise  to  pay  the  debt  of  another. 

3.  Contract  not  to  be  performed  within  a  year. 

§  1.     What  is  the  Promise  to  Pay  the  Debt  of  Another, — The 

jury  are  instructed  that  in  order  to  hold  a  person  liable  on  a 
verbal  promise  to  pay  for  goods  furnished  to  another,  the 
goods  must  be  furnished  exclusively  upon  the  credit  of  such 
promiser,  and  the  creditor  must  have  discharged  the  receipt 
out  of  the  goods  at  the  time  of  the  sale  from  all  liability  there- 
for— he  can  not  retain  an  option  to  claim  payment  from  one 
or  the  other  at  his  future  election — and  in  this  case,  if  the  jury 
believe,  from  the  evidence,  that  the  plaintiff  sold  the  goods  to 
one  F.  and  charged  them  to  him  iTpon  the  promise  that  if  F. 
did  not  pay  for  the  goods  then  the  defendant  would  pay  for 
them,  such  a  promise  on  the  part  of  the  defendant  would  be 
within  the  statute  of  frauds  and  would  not  be  binding  unless 
it  were  in  writing.      Welch  vs.  Marvin,  36  Mich.,  59. 

If  the  jui-y  believe,  from  the  evidence,  that  some  time  about, 
etc.,  one  F.  applied  to  the  plaintiff  and  desired  to  ]mrchase 
from  him,  etc.,  on  credit,  and  that  |3laintift'  refused  to  extend 
such  credit  without  some  kind  of  security  or  assurance  that 
the  debt  would  be  paid,  and  tliat*thcreupon  the  defendant  told 
plaintiff"  to  let  F.  have  the  goods  and  tliat  if  F.  did  not  ])ay  for 
them  he  would,  then  such  a  ])romise  would  be  within  the 
statute  of  frauds,  and  the  defendant  would  not  be  liable  thereon. 
Welch  vs.  Marvin,  36  Mich.,  59;  Cole  vs.  Hutchinson,  26  X. 
W.  E.ep.,  319;  Brown  vs.  Bradshaw,  1  Duer,  199. 

§   2.     Wliat  is  not   a  Promise  to  Pay  the  Debt  of  Another. — If 

the  jury   believe,  from  the  evidence,  that  some  time   on  or 
about,  etc.,  one  A.  was  indebted  to  the  plaintiff  in  tlie  sura  of 

^ and  tliat  at  or  about  that  time  the  defendant  ]nirchased 

from  A.  a  certain,  etc.,  and  as  a  part  of  the  contract  of  pur- 
chase, agreed  to  pay  to  the  plaintiff  $ of  the  purchase  price 

(208) 


STATUTE    OF    FKAUDS.  209 

of  said  property  to  apjilj  on  the  debt  so  due  from  A.  to  the 
pliiintifT,  then  the  defendant's  promise  would  not  be  within 
the  statute  of  frauds  as  a  promise  to  jiay  the  del^t  of  another, 
and  tlie  plaintiff  is  entitled  to  recover  nj)on  such  pi-omise  in 
this  case.  Lee  vs.  Newmaii^h^  Miss.,  365;  5  Greenlf.  (Me.), 
81;  9  Cowan,  266;  Williams  vs.  Rogers,  14  Busli.  (Kj-)?  '^^^' 
Beanlslee  vs.  Morgner,  4  Mo.  App.,  139. 

If  the  jury  believe,  from  tlie  evidence,  that  the  defendant 
entered  into  a  contract  with  one  F.,  by  which  it  was  agreed 
tliat  F.  should  build  a  house  for  defendant  and  furnish  the 
material  tlierefor,  and  that  thereupon  the  defendant  prom- 
ised plaintiff  that  if  he  would  furnish  F.  the  material  for  said 
house  he  would  see  plaintiff  paid  out  of  the  money  coming  to 
F.  under  his  contract,  and  that,  relying  upon  that  promise  of 
defendant,  plaintiff  let  F.  have  the  material  charged  in  the 
account  sued  on  in  this  case,  and  that  without  such  promise 
the  plaintiff  wmild  not  have  furnished  the  material,  then  the 
defendant's  promise  is  not  within  the  statute  of  frauds,  and 
he  is  liable  thereon.  Eastdhvook  vs.  Gebhart,  32  Ohio  St., 
415;   Calkins  vs.  Chandlier,  36  Mich.,  320. 

If  the  jury  believe,  from  the  evidence,  that  some  time  about, 
etc.,  the  defendant  entered  into  a  contract  with  one  F., 
whereby  F.  agreed  to  erect  for  the  defendant  a  dwelling  house 
and  furnish  the  material  therefor,  and  that  afterwards  F.  made 
a  contract  wnth  the  plaintiff  by  which  the  plaintiff"  agreed  to 
furnish  certain  materials,  consisting  of,  etc.,  to  be  used  in  the 
constructing  of  said  house,  and  that  the  plaintiff  did  after- 
wards, in  pursuance  of  said  last  mentioned  contract,  furnish  a 
portion  of  said  materials,  and  then  refuse  to  furnish  any  more 
until  he  could  be  assured  of  his  pay  for  the  same,  and  that 
then  the  plaintiff  and  F.  called  on  defendant  in  reference 
thereto,  and  the  defendant,  in  tlie  conversation  referring  to 
the  said  materials  and  the  said  buildings,  said  to  the  plaintiff", 
I  will  pay  for  all  the  material  which  you  put  into  that 
building,  and  that  ])laintiff,  relying  on  that  promise,  afterwards 
furnished  material  which  went  into  that  building,  then  such 
promise  of  the  defendant  would  not  be  within  the  statute  of 
frauds,  and  he  would  be  liable  thereon  for  the  material  so  fur- 
nished. Hartley  \&.Ya7mer,^S  111.,  591;  Mon^isony^.  Bakei\ 
81  K  C,  76;  Thatcher  vs.  Rockwell,  4  Col.,  375. 
14 


210  STATUTE    OF   FIlAUDS. 

Although  the  Jury  may  believe,  from  the  evidence,  that  the 
whole  of  the  material  for  the  price  of  which  this  suit  is  brought, 
was  charged  ou  the  account  books  of  the  plaintiff  to  the  said 
F.,  still  if  the  jury  further  believe,  from  the  evidence,  that 
before  the  stuff  was  furnished,  the  defendant  proni'sed  to  pay 
for  the  same  if  it  should  be  furnished  to  F.,  and  that  the  ma- 
terial was,  in  fact,  furnished  to  F.  upon  the  promise  of  the 
defendant  to  pay  for  the  same  and  not  upon  the  account,  credit 
or  promise  of  the  said  F.,  then  the  said  plaintiff  is  entitled  to 
recover  in  this  suit  for  the  value  of  the  material  so  furnibhod. 

§   3.     Contract  not  to  be  Performed  within  a  Year. — The  law  is 

that  where  a  contract  is  not  to  be  fully  performed  within  one 
year  from  the  time  it  is  made,  it  is  not  binding  upon  either  of 
the  parties, but  if  work  has  been  done  or  services  performed  by 
one  of  the  parties  for  the  other,  with  his  knowledge  and  con- 
sent, under  such  a  contract,  the  person  ];erformihg  the  service 
or  doing  the  work  may  recover  therefor  what  the  same  is  rea 
sonably  worth.  Towsley  vs.  Moore,  30  Ohio  St.,  184;  Brown 
on  Frauds,  Sec.  117 ;  3  Pars,  on  Cont.,  38;  Frary  vs.  SierUnij,  90 
Mass., 461;  Patton  vs. IIicl-s,4:4:  Cal., 509;  Moore  vs.  Aldrich,  2.") 
Texas,  276;  Wm.  Butcher  Steel  Worhs  \s.  AtJdnson.Q^lW., -^21. 
The  jury  are  instructed,  that  under  the  laws  of  this  state, 
an  agreement  that  is  merely  verbal  and  not  in  writing, 
and  which  by  its  terms  is  not  to  be  fully  performed 
within  one  year  from  the  making  thereof,  is  not  valid  nor 
binding  on  the  parties;  and  though  the  jury  may  believe, 
from  the  evidence,  that  there  was  an  agreement  between  the 
parties  by  which  the  defendant  agreed  to  employ  the  plaintiff 
for  a  period  of  two  years,  at  a  salary  of  twenty-five  hundred 
dollars  for  the  first  year  and  at  an  increased  salary  for  the  second 
year,  still  if  the  jury  further  find,  from  the  evidence,  that  such 
contract  was  not  reduced  to  writing,  nor  any  note  or  memo- 
randum thereof  made  and  signed  by  the  defendant  or  its  author- 
ized agent,  then  such  contract  would  not  be  binding  on  the 
defendant  for  a  longer  time  than  one  year  from  the  time  the 
same  was  made,  and  the  defendant  would  have  the  right  to 
discharge  the  plaintiff  at  any  time  after  the  expiration  of  the 
first  year,  and  would  only  be  liable  to  pay  him  at  the  contract 
price  for  the  services  actually  rendered.  Brown  on  the 
Statute  of   Frauds,  §  118;  Shnte  vs.  Dorr,  5  Wend.,  201. 


CHAPTER  XXL 

FEAUDS  AGAINST  CREDITOKS. 


Sec.    1.  Sale  with  intent  to  defraud  creditors. 

2.  Fraudulent,  though  with  a  good  consideration,  when. 

3.  Must  be  a  change  of  possession — Fraud  per  se. 

4.  Must  be  outward,  visible  signs  of  change  of  possession. 

5.  Priority  of  possession  under  execution. 

6.  Retaining  possession — Presumptive  evidence  of  fraud. 

7.  Good  faith  a  question  for  the  jury,  when. 

8.  Possession  evidence  of  ownership. 

9.  Possession  not  evidence  of  ownership,  when. 

10.  Only  such  change  required  as  can  reasonably  be  made. 

11.  Property  in  possession  of  a  third  party. 

12.  Symbolical  delivery. 

13.  Possession  by  agent. 

14.  Possession  of  growing  crops. 

15.  Temporary  possession  of  vendee. 

16.  Person  in  debt  may  sell  his  property. 

17.  Sale  by  relatives  not  necessarily  fraudulent. 

18.  Debtor  miy  transfer  property  in  payment  of  debtf?. 

19.  Sale  on  credit. 

20.  Debtor  may  prefer  creditor. 
2T.  Preferring  wire  as  creditor. 

22.  Purchaser  may  be  chargeable  with  notice  of  fraud. 

23.  Creditor  not  affected  by  knowledge,  when. 

24.  What  is  sufficient  notice  of  fraudulent  intent. 

25.  Honest  intent  presumed. 

CHATTEL  MORTGAGE  AS  AGAINST   JUDGMENT    CEEDITOES. 

2ij.  Good  between  the  parties  without  recording. 

27.  As  to  creditors,  must  be  acknowledged  and  recorded. 

28.  Mortgagee  must  see  to  statutory  requirements. 

29.  Acknowledgment  and  recording,  how  proved. 

30.  Mortgagee  must  talce  possession  of  the  property,  when. 

31 .  Fraudulent  mortgage  void. 

32.  Note  for  more  than  amount  due. 

33.  Mortgage  of  stock  of  goods. 

34.  Bath  pirtie=!  must  intend  tha  fraud. 

35.  Good  faith,  how  proven. 

36.  Intent  to  defrau  1  must  exist  at  the  time  of,  etc. 

37.  Subsequent  acts  will  not  render  void. 

(211) 


212  FEAUDS    AGAINST     CKEDITOKS. 

38.  Sale  by  mortgagor. 

39.  Mortgage  to  secure  furt'  er  advances. 

40.  Possession  by  the  mortgagee. 

41.  Possession  by  the  mortgagor  after  default. 

42.  Mortgage  to  secure  contingent  liability. 

43.  Taking  possession  before  debt  due. 

44.  Sale  by  mortgagor  for  benefit  of  mortgagee. 

Note. — In  many  of  the  states,  the  retaining  of  the  possession  of  personal 
property,  by  the  vendor,  after  an  absolute  sale,  is  held,  in  favor  of  the  credit- 
ors of  the  vendor,  to  be  prima  fade  or  presumptive  evidence  of  a  fraudu- 
lent intent  on  the  part  of  the  vendor,  known  to  and  participated  in  by  the 
vendee;  but  such  presumption  may  be  rebutted  by  evidence  of  good  faith. 
In  some  of  the  states  such  retaining  of  possession  is  held  to  be  conclusive 
evidence  of  fraud,  in  favor  of  the  creditors  of  the  vendor,  and  not  subject 
to  exclanation.  In  other  states  the  matter  is  regulated  by  statute.  Bump 
on  Fraud.  Conv.,  60,  and  the  cases  there  cited. 

§  1.  Sale  with  Intent  to  Defraud  Creditors. — The  jury  are 
instructed,  that  every  sale  or  conveyance  of  property,  made 
by  the  parties  with  intent  to  hinder,  delaj'-  or  defrand  creditors 
in  the  collection  of  their  debts,  is  fraudulent  and  void  as  to  such 
creditors,  whether  such  sale  or  assignment  is  made  with  or 
withouta  valuable  consideration  therefor.  Camjphell  v.  Whit- 
son,  68  111.,  240. 

§  2.     Fraudulent,  Though  for    a    Good    Consideration,  "VMien. — 

That  a  conveyance  or  sale  of  property  made  with  the  intent, 
on  the  part  of  the  vendor,  to  delay,  hinder  or  defraud  a  par- 
ticular creditor  in  the  collection  of  his  debt,  is  void  as  against 
all  the  creditors  of  the  vendor,  if  the  intent  be  known  to  or 
particii)ated  in  by  the  vendee,  although  made  for  a  good  and 
valuable  consid'eration.  Bump  on  Fraud.  Conv.,  198;  N'elson 
vs.  Smith,  28  111..  495;  Chappell  vs.  Clapp,  29  la.,  191;  Harri- 
son vs.  Jaguess,  29  Ind.,  208;  Castro  vs.  lilies,  22  Texas,  479; 
Gardiner  vs.  Otis,  13  Wis.,  460. 

You  are  instructed,  that  if  a  purchaser  knows  that  the 
vendor  has  a  fraudulent  purpose  in  making  the  sale,  and  buys 
with  that  knowledge,  he  is  not  a  bona  fide  purchaser. 

§  3.     IMust  be  a  Change  of   Possession — Fraud    per    se. — The 

court  instructs  the  jury,  as  a  matter  of  law,  that  any  sale  or 
conveyance  of  personal  pro  pert}',  to  be  valid,  as  against  the 
creditors  of  the  seller,  must  be  accompanied  and  followed  by 


FKAUDS    AGAINST     CREDITOKS.  213 

a  change  in  the  possession  of  such  ])ropertj,  from  the  seller 
to  the  purchaser,  so  far  as  the  situation  of  the  parties  and  the 
character  of  the  property  will  reasonably  admit  of  a  change  of 
possession. 

That  the  change  of  the  possession  of  personal  property  upon 
a  sale  thereof,  must  not  be  merely  nominal  or  momentary;  it 
must  be  real,  actual  and  open,  and  such  as  may  be  publicly 
known,  so  far  as  the  circumstances  will  reasonably  admit  of. 
A  continued  possession  by  the  vendor  of  personal  propert}',  as 
ostensible  owner,  after  an  absolute  sale,  renders  the  sale  fraudu- 
lent and  void,  as  against  creditors  of  the  vendor.  Wrlfjht  vs. 
Grover,  27  111.,  426;  Sutton  vs.  Bailout,  46  Iowa,  517;  Cater 
vs.  Collins,  2  Mo.  App.,  225;  Bosse  vs.  Thomas,  3  111.  App., 
472. 

That  any  sale  of  personal  property,  when  it  is  permitted  to 
remain  with  the  vendor,  if  it  is  of  that  character  of  ])roperty 
that  it  is  capable  of  being  removed,  or  of  having  a  change  in 
the  possession  of  it  made,  is  fraudulent  in  law,  as  to  creditors 
and  subsequent  purchasers,  notwithstanding  the  sale  may  be  in 
good  faith,  and  for  a  valuable  consideration.  Ticknor  vs. 
McClelland,  84  111.,  471. 

§  4.     Must  be  Outward,  Visible  Siffus  of  Change  of  Possession. — 

The  jury  are  instructed,  that  when  persons  are  doing  business 
as  a  firm,  and,  in  the  way  of  their  business,  have  in  their  pos- 
session a  stock  of  goods  in  store,  and  while  they  are  so  doing 
business,  they  contract  debts,  then  no  sale  or  assignment  of 
such  stock  of  goods,  or  any  interest  therein,  will  be  valid,  as 
against  the  creditors  of  the  firm,  unless  the  creditors  have 
actual  notice  of  the  sale,  or  there  is  such  a  change  in  the  pos- 
session of  the  goods,  and  of  the  outward  and  visible  signs  of 
ownership,  as  would  indicate  to  the  public,  and  to  those  deal- 
ing with  the  stock,  that  such  sale  or  transfer  had  been  made. 
^Yrig^lt  vs.  McCormicJc,  67  Mo.,  426. 

If  you  believe,  from  the  evidence,  tliat  some  time  about  the 
month  of J.  and  B.  commenced  to  do  business  as  part- 
ners, and,  in  the  way  of  their  business,  had  a  stock  of  goods  at 

,  and  that  while  they  were  so  doing  business,  that  firm 

became  indebted  to  K.  upon  the  note  introduced  in  evidence, 
and  that  afterwards  J.  sold  out  all  his  interest  in  the  stock  of 


21tt  FKAUDS    AGAINST    CKEDITOKS. 

goods  to  liis  partner,  such  a  sale  would,  in  law,  be  fraudulent 
and  void  as  against  K.,  unless  you  believe,  from  the  evidence, 
that  K.  liad  actual  notice  of  the  sale,  or  unless  the  sale  was  ac- 
companied and  followed  by  all  such  changes  in  the  possession 
of  the  stock  of  goods,  and  in  the  manner  of  doing  business  in 
connection  therewith,  as  would,  so  far  as  the  circumstances 
would  reasonably  admit  of,  notify  the  public  and  persons  deal- 
ing with  the  firm,  and  with  the  stock  of  goods,  that  such  sa'e 
had  been  made. 

Tou  are  instructed,  as  a  matter  of  law,  that  any  sale  or  as- 
signment of  personal  property,  when  the  possession  of  the 
property  is  permitted  by  the  purchaser  to  remain  in  the  seller, 
is  fraudulent  and  void  as  against  the  creditors  of  the  seller ; 
and  where  the  nature  of  the  property  and  the  situation  of  tlie 
parties  will  admit  oi  it,  in  order  to  constitute  a  change  of  pos- 
session, there  must  be  some  outward,  open,  visible  change  in 
the  relation  of  the  parties  to  the  goods,  indicating  a  change  in 
the  possession  that  could  be  seen  and  known  by  persons  deal- 
ing with  the  goods.     PicTcdrd  vs.  Hopkins^  17  111.  App.,  570. 

If  you  believe,  from  the  evidence,  that  before  and  up  to  the 
time  of  the  alleged  sale  from  A.  B.  to  the  ])laintiff.  A.  B.  had 
been  engaged  in  business  as  a  retail  merchant,  and  that  the 
goods  in  question,  or  any  of  them,  were  a  part  of  his  stock  in 
trade,  and  after  the  alleged  sale  A.  B.  and  his  former  clerk 
remained  in  chai-ge  of  the  store,  and  that  nothing  was  done  by 
the  parties  to  notify  the  public  that  there  had  been  a  sale, 
then  the  sale  would,  in  law,  be  fraudulent  and  void  as  against 
the  creditors  of  A.  B.;  and  if  you  further  believe  that  A.  B. 
was  indebted  to  the  said  K.,  before  and  at  the  time  of  the 
alleged  sale,  then  the  property,  while  so  remaining  in  the  pos- 
session of  A.  B.,  could  lawfully  be  taken  on  an  attachment 
writ  or  execution,  issued  in  favor  of  the  said  K.,  and  against 
the  said  A.  B. 

That  when  a  person  engaged  in  business  as  a  retail  mer- 
chant, sells  out  his  business  and  entire  stock  in  trade  to 
another,  in  order  to  render  the  sale  valid  as  against  the  credit- 
ors of  the  seller,  it  is  necessary  that  there  be  an  actual  change 
of  the  possession  of  the  property  sold,  from  the  former  owner 
to  the  purchaser,  attended  by  such  outward  and  visible  signs 
of  a  change  of  possession  as  could  be  seen  and  known  to  the 
pubMc,  or  to  persons  dealing  with  the  goods. 


FEAUDS   AGAINST    CREDITORS.  215 

The  court  instructs  you,  that  while  a  sale  of  property  may 
be  good,  as  between  the  vendor  and  vendee,  without  actual 
delivery,  yet  to  make  such  sale  valid  and  binding,  as  against 
the  creditors  of  the  vendor,  there  nnist  be  a  delivery  of  the 
pro[)erty  so  sold;  and  such  delivery  must  be  an  actual,  manual 
delivery,  Avhen  the  property  is  susceptible  of  it;  and  when 
the  ])roperty  is  so  heavy  or  bulky  that  manual  delivery  is  im- 
jnacticab^e,  then  there  nmst  be  some  outward  public  act  done 
by  way  of  delivering  tlie  possession,  which  shows  an  intention 
by  the  parties  to  change  the  possession  from  the  seller  to  the 
buyer,  so  far  as  it  can  reasonably  be  done  nnder  the  circum- 
stances of  the  case.  Ticknor  vs.  McClelland,  81  111.,  471; 
Allen  vs.  Carr,  85  111.,  388. 

§  5.  Priority  of  Possession  under  Execntion. — If  the  jury  be- 
lieve, from  the  evidence,  that  at  the  time  of  the  alleged  pur- 
chase of  the  ])roperty,  there  was  no  act  done  by  the  seller 
towards  turning  over  the  pro])erty  to  tlie  plaintiff,  and  no  act 
done  by  the  plaintiff  towards  taking  p)ossession  of  the  property, 
then,  as  against  the  execution  creditors  of  the  seller,  such  a 
sale  would  be  fraudulent  and  void  in  law,  and  the  execution 
introduced  in  evidence,  if  received  by  the  othcer  {or  levied 
tipon  the  proj>e7'ty)  before  any  acts  were  done  towards  chang- 
ing the  possession  of  it,  would  hold  the  piroperty  as  against 
the  plaintiff". 

§   6.     Retaining  Possession — Presumptive  Evidence  of  Fraud. — 

The  court  instructs  the  jury,  that  the  law  presumes  every  sale 
of  personal  property  to  be  fraudulent  and  void,  as  against  the 
creditors  of  the  seller,  unless  a  change  of  possession  of  the 
property,  from  the  seller  to  the  purchaser,  accompanies  and 
follows  the  sale;  and  this  change  must  be  an  open,  visible 
change,  manifested  by  such  outward  signs  as  render  it  evident 
to  persons  dealing  with  the  property,  that  the  possession  of 
the  former  owner,  as  such,  has  ceased.  Osborne  vs.  Ratlijfe^ 
53  la.,  748. 

In  this  case,  although  ^^ou  may  believe,  from  the  evidence, 
that  the  plaintiff'  and  the  said  A.  B.,  before  the  execution,  in- 
troduced in  evidence  in  this  case,  was  issued  and  received  by 
the  ofHcer  {or  levied  ujyoro  the  property),  went  through  with 


2 It)  FKAUDS    AGAINST     CEEDITORS. 

the  forms  of  a  sale  from  the  latter  to  the  former;  ctill,  if  jou 
further  believe,  from  the  evidence,  that  there  was  no  apparent 
change  in  the  possession  of  the  property  accompanying  such 
sale,  then  the  law  presumes  the  sale  to  have  been  made  with 
a  fraudulent  intent  on  the  ]:art  of  the  seller,  known  to  and 
participated  in  by  the  plaintiff,  and,  in  such  case,  the  burden 
of  proof  is  on  the  plaintiif  to  show  the  good  faith  of  the 
transaction,  by  a  preponderance  of  evidence. 

You  are  further  instructed,  as  a  matter  of  law,  that  where 
a  sale  of  personal  property  is  alleged  to  have  been  made,  and 
there  is  no  change  in  the  possession  of  the  jn-operty  accom- 
jmnying  or  following  the  sale,  then  the  law  ])resumes  tliatsuch 
sale  was  made  with  intent  to  hinder,  delay  or  defraud  the 
creditors  of  the  seller;  and  to  render  such  a  sale  valid  and 
binding,  as  against  such  creditors,  the  burden  of  proof  is  on 
the  purchaser  to  show,  by  a  preponderance  of  evidence,  that 
the  sale  was  bonajide  and  honest,  and  not  designed  as  a  mere 
trick  to  cover  up  the  ])roi  erty.  Wehster  vs.  Anderson^  42 
Mich.,  551;  Stem  vs.  Henley,  QS  Mo.,  2G2:  Gcisendorff  vs. 
Eagles,  TO  Ind.,  418. 

§  7.  Good  Faith  a  Question  for  the  Jury,  "VMien. — The  jury  are 
instructed,  that  although  the  iaw  presumes  every  sale  of  per- 
sonal property,  where  the  possession  of  the  property  is  allowed 
to  remain  with  the  seller,  to  be  fraudulent  and  void,  as  against 
the  creditors  of  the  seller,  still,  this  presumption  of  law  is  not 
conclusive  on  the  parties,  and  whether  the  sale  was,  in  fact, 
made  in  good  faith,  is  a  question  to  be  determined  by  thejui-y, 
from  a  consideration  of  all  the  evidence  in  the  case. 

And  in  this  ease,  if  you  believe,  from  all  the  facts  and  cir- 
cumstances attending  the  sale  in  question,  as  shown  by  the 
evidence,  that  the  sale  was  bona  fide,  and  for  a  valuable  con- 
sideration, and  not  made  with  intent,  or  for  the  purpose  of 
hindering,  delaying  or  defrauding  the  creditors  of  the  said  A. 
B.,  then  such  a  sale  is  as  valid  and  binding  as  though  the 
possession  of  the  property  had  passed  to  the  plaintiff  at  the 
time  of  the  sale.  Crawford  vs.  KirJcsey,  55  Ala.,  282 :  Itoh- 
inson  vs.  Uhl,  6  Neb.,  328;  31  organ  vs.  Bogue,  7  Kob.,  429; 
McCully  vs.  SwacJihainer,  6  Oreg.,  438. 

§  8.     Possession  Evidence  of  Ownership. — The  court  instructs 


FKAUDS    AGAIKST    CKEDITOES.  217 

the  jury,  that  possession  of  personal  projicrtj  is  jprima  facie 
evidence  of  ownership,  if  there  are  no  circumstances  accom- 
panying the  possession  to  rebut  the  presumption  of  owner- 
ship; and  if  the  jury  believe,  from  the  evidence,  that  the 
plaintiff  had  been  in  possession  of  the  property  in  question  for 

months,  prior  and  up  to  the  time  it  was  taken,  and  under 

circumstances  indicating  ownership  in  him,  then  it  is  incum- 
bent upon  the  defendant  to  show,  by  a  preponderance  of 
testimony,  that  the  title  was  not  in  the  plaintiff,  and  unless 
he  has  done  so,  they  should  find  for  the  plaintiff,  as  to  the 
ownershi]3  of  the  property.     Bergen  vs.  Riggs^  34  111.,  170. 

§  9.  Possession  not  Evidence  of  Ow^nersliip,  AVlien. — The  jury 
are  instructed,  that  although  it  is  a  general  rule  of  law,  that 
possession  of  personal  property  is  friiiia  facie  evidence  of 
title  in  the  person  in  possession,  still  the  possession  may  be 
accompanied  by  such  circumstances  as  to  rebut  such  presump- 
tion; and  so  in  this  case,  although  the  jury  may  believe,  from 
the  evidence,  that  the  defendant  was  in  possession  of  the  prop- 
erty when,  etc.,  still,  if  the  jury  further  find,  from  the  evidence, 
that  such  possession  was  attended  or  accompanied  by  such  cir- 
cumstances as  rebut  the  presumption  of  ownership  arising  from 
such  possession,  then  such  possession  is  not,  of  itself  alone, 
as  en  priiyia  facie  evidence  of  ownership  in  the  defendant. 

§  10.     Only  Sucli  Cliange  Required  as  can  Reasonably  be  Made. — 

In  determining  wdiat  it  takes  to  constitute  a  deliveiy  and 
change  of  possession  of  personal  property  npon  a  sale  of  it, 
the  jury  should  take  into  consideration  the  character  of  the 
property,  and  the  situation  of  the  parties  at  the  time  of  the 
sale;  and  in  this  case,  if  the  jury  find,  from  the  evid 'nee,  that 
the  plaintiff  purchased  the  property  in  question  in  good  faith, 
and  for  a  valuable  consideration,  before  the  execution,  intro- 
duced in  evidence,  came  into  the  hands  of  the  ofiico]-  [or  loas 
levied  UTpon  the  iwoperty)^  that  plaintiff  had  done  everything 
which  could  reasonably  be  done,  under  the  circumstances,  by 
way  of  taking  possession  of  the  property,  under  the  sale  to 
him,  then  the  property  would  not  be  liable  to  be  taken  on  the 
execution.  Bump  on  Fraud.  Conv.,  165 ;  Cartright  vs.  Phimiix, 
7  Cal.,  281;  Allen  vs.  Smith,  10  Mass.,  308;  Chase  vs.  Ral- 
st07i,  30  Penn.  St.,  539. 


218  FKAUDS    AGAINST    CEEDITOES. 

That  the  rule  of  law  requiring  a  change  of  possession  of  per- 
sonal property  upon  the  sale  of  it,  in  order  that  the  sale  shall 
not  be  fraudulent  as  against  creditors,  only  requires  such  a 
change  of  possession  as  the  articles  sold  will  conveniently  and 
reasonably  admit  of,  and  in  the  case  of  heavy  and  cumbersome 
articles,  an  actual  delivery  of  any  essential  part  thereof,  with 
the  intention  of  delivering  the  whole,  is,  in  law,  equivalent  to 
a  delivery  of  the  whole  article  sold.     1  Pars,  on  Cont,  443. 

The  court  instructs  you,  that  although  a  delivery  of  personal 
property  sold  is  necessary  to  pass  the  title  thereto,  as  against 
the  creditors  of  the  seller,  yet  such  delivery  need  not  neces- 
sarily be  an  actual  delivei-y;  but  anything  which  clearly  shows 
a  surrender  of  ownership  by  the  seller,  and  an  assumption  of 
ownership  by  the  purchaser,  accompanied  by  such  circum- 
stances as  would  reasonably  advise  the  world  of  such  change 
of  ownership,  is  all  that  is  necessary  on  that  point.  Plckard 
vs.  UopJdns,  17  111.  A  pp.,  570. 

§  11.  Property  in  Possession  of  Tliird  Person. — The  court  in- 
structs the  jury,  that  where  personal  property  is  sold,  which, 
at  the  time  of  the  sale,  is  in  the  actual  ])Ossession  or  under  the 
cuntrol  of  a  third  person,  no  other  delivery  of  such  ]iroperty 
is  necessary,  than  that  the  seller  and  purchaser,  together  with 
such  thii-d  person,  should  agree  that  such  third  person  should 
thei-eafter  keep  possession  of  the  property  for  the  purchaser, 
and  he  does  so  keep  possession.     Ibid. 

§  12.  Sj-mbolical  Delivery. — The  jury  are  instructed,  that 
the  transfer  of  a  bill  of  lading,  on  a  sale  or  pledge  of  the 
property  shipped,  is  a  symbolical  delivery  of  the  property  to 
the  purchaser  or  pledgee,  and,  if  proved,  is  a  good  delivery  of 
the  ])roperty  as  against  the  creditors  of  the  shippers.  1  Pars, 
on  Cont.,  443;  Mich.  Cent.  Ed.  Co.  vs.  PMllijys,  60   111.,  190. 

§  13.  Possession  by  Agent. — That  a  party  may  be  in  pos- 
session of  personal  property,  by  his  agent  as  well  as  by  him- 
self, and  if  the  goods  are  sold  in  good  faith,  and  for  a  valuable 
consideration,  and  the  possession  is  delivered  to  the  purchaser, 
it  is  not  necessary  that  he  should  remain  in  the  actual  pos- 
session of  the  property  to  guard  liis  title;  but  such  possession 
may  be  by  an  agant,  and  such  agent  may  be  the  seller  of  the 


FKAUDS    AGAINST     CEEDITORS.  219 

property,  if  llio  ]»ossession  is  such  as  reasonably  to  advise  the 
creditors  of  the  cluuige  in  the  title  of  the  property.  Warner 
vs.  Carleto?i,  22  III.,  415. 

§  14.  Possession  of  Growing  Crops.— The  conrt  instructs  the 
jury,  that  upon  the  sale  of  personal  property,  where  the  goods 
are  purchased,  and  are  incapable  of  being  handed  over  from 
one  to  another,  there  need  not  be  a  manual  delivery;  and  in 
,  the  case  of  the  sale  of  standing  corps,  the  possession  will  be 
in  the  vendee  until  it  is  time  to  harvest  them,  and  until  then 
lie  is  not  required  to  take  manual  or  actual  possession  of  them. 
Ticknor  vs.  McClelland.!  S-i  111.,  -ITl. 

§  15.  Temporary  Possession  of  Vendee. —  If  the  jury  believe, 
■  from  the  evidence,  that  the  plaintiff  ])urchased  the  property 
in  good  faith,  and  paid  a  valuable  consideration  therefor,  and 
then  took  actual  possession  of  the  property  under  such  sale, 
and  continued  such  possession  long  enough  and  under  such 
circumstances  as  to  apprise  the  }mblic  generally  of  a  change 
in  the  ownership  of  the  property,  then,  although  the  jury 
should  find,  from  the  evidence,  that  the  plaintiff  loaned  the 
property  temporarily  to  the  said  A.  B.,  this  would  not  alone 
render  the  sale  fraudulent  or  void  {or  not  presumptive  evi- 
dence of  a  fraudulent  sale^  etc.),  as  against  the  creditors  of  the 
said  A.  B.     Cunningham  vs.  Ilaniilton.,  25  111.,  228. 

§  16.  A  Person  Indebted  may  Sell  his  Property. — That  a  party, 
though  in  debt,  may  sell  his  property  to  any  one  he  pleases,  if 
for  an  honest  and  fair  consideration,  and  no  lien  exists  to  for- 
bid it.  If  the  transaction  be  an  honest  one,  made  in  good 
faith  and  for  an  adequate  consideration,  it  matters  not  how 
many  creditors  may  be  prevented  thereby  from  reaching  the 
pro])erty. 

The  jury  are  instructed,  that  although  a  sale  of  a  debtor's 
proj.erty  may  have  the  effect  to  hinder  and  delay  his  creditors 
in  the  collection  of  their  debts,  this  fact  alone  will  not  render 
the  sale  fraudulent  or  void;  a  debtor,  however  insolvent,  may 
lawfully  sell  his  property,  even  for  less  than  its  worth,  if  it  is 
done  with  a  honafide  intention  of  applying  the  proceeds  in 
discharge  of  any  legal  liability.  Bump  on  Fraud.  Conv.,  44; 
Wdsonx^.  Smith,  28  111.,  495. 


220  FRAUDS    AGAINST    CEEDITOES. 

You  ai-e  instructed,  that  a  sale  of  proj^erty  in  good  faitli 
for  a  valuable  consideration,  when  there  is  a  delivery  of  the 
property  sold,  passes  the  title  to  the  purchaser,  and  the  fact 
tliat  the  seller  was  in  debt  will  not,  of  itself,  invalidate  the 
sale,  although  the  purchaser  may  have  known  that  fact  at  the 
time  of  the  purchase. 

If  you  believe,  from  the  evidence,  that  C.  was  indebted  to 
third  persons  at  the  time  of  the  sale  to  the  plaintiff,  if  such 
sale  has  been  proved,  and  that  the  plaintiff  agreed  to  pay  such 
debts,  this  would  constitute  a  good  consideration  for  the  sale 
to  the  plaintiff,  if  the  sale  was  made  in  good  faith,  War?ier 
vs.  Carleton,  22  111.,  415. 

§  17.     Sale  to  Relatives  not  Necessarily  Eraudulent. — A  man 

lias  a  perfect  right  to  deal  with  his  friends  and  relations, — to 
buy  or  sell  from  or  to  them,  and  the  presumption  of  law  is, 
that  the  dealings  between  relatives  are  fair  and  honest,  with- 
out any  fraudulent  intent,  and  no  jiresumption  of  fraud  attaches 
to  such  dealings;  and  if  a  man  finds  himself  in  failing  circum- 
stances  he  has  a  right  to  prefer  one  creditor  to  another, —  to 
so  dispose  of  his  property  that  one  of  his  creditors  shall  receive 
his  pa}'  in  full  and  others  receive  nothing.  Xor  there  is  any 
presum{)tion  of  fraud  in  so  doing.  Schroeder  vs.  ^Valsh^  12U 
111.,  410;  Wightmcui  vs.  Hart,  37  111.,  123;  Waterman  vs. 
Donalson,  43  111.,  29;  Bump  on  Fraudulent  Conveyances,   56. 

§   18.     Debtor  may  Transfer  Propei-ty  in  Payment  of  Debts, — 

The  jury  are  instructed,  that  a  person  who  is  indebted  and 
unable  to  pay  all  his  debts  in  full,  has  a  right  to  prefer  any 
one,  or  more,  of  his  creditors  to  the  exclusion  of  all  the  others; 
and  in  the  payment  of  a  Jjona  fde  indebtedness  to  one  of  his 
creditors,  a  debtor  may  exhaust  the  whole  of  his  property,  so 
as  to  leave  nothing  for  the  other  creditors,  \\A\o  are  equally 
meritorious.  Bump  on  Fraud.  Conv.,  183;  State  vs.  Laurie,  1 
Mo.  App.,  371;  Green  vs.  Tanner,  49  Mass.,  411;  Kemp  vs, 
Walker,  16  Ohio,  118;  Huhbard  vs,  Taylor,  5  Mich.,  155. 

That  there  is  no  law  requiring  a  debtor,  however  insolvent, 
to  keep  his  property  until  a  creditor  can  attach  it  or  have  it 
levied  upon  by  an  execution.  Such  a  debtor  may,  in  good 
faith,  and  for  a  valuable  consideration,  sell  all  liis  propcj  ty  and 


FEAUDS   AGAINST    CREDITOKS.  221 

api^ly  the  proceeds  thereof  to  the  ])ayment  of  any  one  or  more 
of  his  creditors,  as  he  may  see  tit,  if  done  in  ^ood  faith,  al- 
though it  be  done  with  the  intention  of  defeating  his  other 
creditors. 

Yoii  are  instructed,  that  a  conveyance  of  property  made  in 
good  faith  to  j)ay  an  Jionest  debt,  is  not  fraudulent,  though  tlie 
debtor  be  insolvent  and  the  creditor  is  aware,  at  tlie  time  of 
the  sale,  that  it  will  have  the  effect  of  defeating  other  creditors 
in  the  collection  of  their  debts. 

In  order  to  avoid  the  conveyance  on  the  ground  of  fraud, 
there  nuist  be  a  real  design  on  the  part  of  the  debtor  to  pre- 
vent the  application  of  his  property,  in  whole  or  in  part,  to 
the  satisfaction  of  his  debts.  A  creditor  violates  no  rule  of 
law  when  he  takes  payment  or  security  for  his  demand,  if  done 
in  good  faith,  though  others  are  thereby  deprived  of  all  means 
of  obtaining  satisfaction  of  their  equally  meritorious  claims. 
Gray  vs.  -6^^;.  John,  35  111.,  222. 

§  19.  Sale  on  Credit. — The  jury  are  further  instructed,  as  a 
matter  of  law,  that  in  the  case  of  an  absolute  and  uncondi- 
tional sale  of  goods,  the  fact  that  the  vendor  was  indebted  at 
the  time,  that  the  sale  was  on  credit,  and  that  notes  taken  for 
the  nnpaid  price  were  to  be  used  in  the  payment  of  his  debts, 
will  not  alone  establish  fraud  in  such  sale  as  against  his  cred- 
itors.    Miller  et  al.  vs  Kirhj,  74  111.,  242. 

§  20.  Debtor  may  Prefer  a  Creditor. — That  a  debtor  may  pre- 
fer one  creditor,  paying  him  in  full,  thus  exhausting  his  whole 
property,  leaving  nothing  for  his  other  creditors.  He  may, 
a^so,  partially  pay  a  portion  of  his  creditors  in  unequal  pay- 
ments, and  wholly  neglect  his  other  creditors,  and  j-et  the  law 
will  not  disturb  such  disposition  of  his  property,  if  done  in 
good  faith. 

You  are  further  instructed,  as  a  matter  of  law,  that  a  debtor 
in  failing  circumstances  has  a  right  to  prefer  one  creditor  to 
another,  and  to  pay  one  creditor  with  goods  obtained  on  credit 
from  another  creditor. 

And  in  this  case,  if  you  believe,  from  the  evidence,  that  M. 
was  lawfully  indebted  to  defendant,  and  finding  that  he  could 
not  pay  all  his  debts,  transferred  the  goods  in  controversy  to 


222  FEAUDS    ACTAI^'ST     CREDITORS. 

defendant,  in  payment,  or  in  part  payment,  of  sncli  indebted- 
ness, then,  upon  tlie  question  of  the  ownership  of  the  goods, 
you  should  find  a  verdict  for  the  defendant,  unless  you  fur- 
ther believe,  from  the  evidence,  that  the  defendant  had  notice 
of  the  fraud  practiced  by  M.  in  obtaining  possession  of  the 
goods,  if  such  fraud  has  been  proven.  Butters  vs.  Ilaughwout, 
42  111.,  18. 

§  21.  Preferring  Wife  as  Crelitor. — A  husband  indebted  to 
his  wife,  may  prefer  her  to  his  other  creditors,  and  make  a 
valid  appropriation  of  his  property  to  pay  her  claim,  even 
though  he  is  thereby  deprived  of  the  means  to  pay  other 
debts.  Ferguson  vs.  Spear,  65  Me.,  277;  Il'dl  vs.  Bowman, 
35  Mich.,  191. 

§  22.     Purchaser  must  be  Chargeable  with  Notice  of  Fraud. — 

The  jury  are  instructed,  as  a  matter  of  law,  that  it  is  not 
sufficient,  to  vitiate  a  sale  of  personal  property,  that  it  was 
made  by  the  vendor  to  hinder,  delay  or  defraud  his  creditors. 
In  order  to  vitiate  such  sale  as  against  the  purchaser,  he  must 
have  had  knowledge  or  notice  of  such  intent  on  the  ]»art  of 
the  seller.  Miller  vs.  Kirhj,  74  111.,  242;  Batch  vs.  Jordan, 
74  111.,  414;  Preston  vs.  Turner^  36  la.,  671;  Drummond  vs. 
Couse  et  al.,  39  la.,  442. 

The  court  instructs  you,  that  while  our  statute  declares, 
every  sale  or  assignment  which  is  made  with  intent  to  defraud, 
hinder  or  dela}'-  creditors  in  the  collection  of  their  debts  void, 
still  such  sale  or  assignment  will  not  be  void  as  against  the 
purchaser,  unless  he  knew,  or  had  good  reason  to  suppose, 
that  the  sale  was  made  by  the  seller  \\\i\\  intent  to  defraud  his 
creditors,  or  to  hinder  or  delay  them  in  the  collection  of  their 
debts.  Bump  on  Fraud.  Con  v.,  195;  Preston  vs.  Turntr,  39 
la..  671;  Gentry  vs.  Robinson,  15  Mo.,  260;  Lipperd  vs. 
Edwards,  39  Ind.,  165;  Ilicls  vs.  Stone,  13  Minn.,  434. 

You  are  further  instructed,  that  althonghthey  may  believe, 
from  the  evidence,  that  A.  B.  sold  the  j>roperty  in  controversy 
to  the  plaintiff  for  the  purpose  of  hindering  or  delaying  his 
creditors,  still,  if  you  further  believe,  from  the  evidence,  that 
the  plaintiflp,  at  the  time  of  the  purchase,  had  no  notice  or 
knowledge  of  such  purpose,  then  the  sale  would  not  be  fraud- 


FEAUDS    AGAINST    CKEDITOKS.  223 

u]ent  or  void,  as  to  the  plaintiff,  by  reason  of  the  fraudulent 
intent  on  the  part  of  the  said  A.  B. 

You  are  instructed  that  to  impeach  a  sale  of  personal  prop- 
erty upon  the  ground  of  a  fraudulent  intent  on  the  part  of 
the  seller,  it  is  not  necessary  to  establish  a  fraudulent  intent 
on  the  part  of  the  purchaser;  it  will  be  sufficient  if  the 
evidence  shows  that  he  knew  of  the  fraudulent  intent  of  the 
seller,  or  had  notice  of  such  facts  as  would  have  put  a  man  of 
ordinary  prudence  upon  inquiry,  which  would  have  led  to  a 
knowledge  of  the  fraudulent  purpose  of  the  seller.  Jones  vs. 
Iletherlngtoyi,  45  la.,  68 1;  Zuver  vs.  Lyons,  40  la.,  510. 

§  23.  Creditor  not  Affected  by  Knowledge,  Wlien. — The  jurv 
are  instructed,  that  wlien  a  person  purchases  goods  witli  the 
knowledge  that  his  vendor  intends  by  the  sale  to  defraud  his 
creditors,  or  to  hinder  and  delay  them  in  the  collection  of  their 
debts,  such  purchaser  will  not  be  affected  if  he  takes  the 
goods,  in  good  faith,  in  payment  of  an  honest  debt.  A  cred- 
itor violates  no  rule  of  law  when  he  lakes  payment  of  his  debt, 
though  he  knows  that  other  creditors  are  thereby  deprived  of 
all  means  of  obtaining  satisfaction  of  their  own  equally  mer- 
itorious claims.     G7Xiy  vs.  St.  John,  35  111.,  222. 

§  24.  What  is  Sufficient  Notice  of  Fraudulent  Intent. — The  court 
instructs  the  jury,  that  when  a  transfer  of  property  is  made, 
with  intent  on  the  part  of  the  person  making  it  to  hinder,  delay 
or  defraud  his  creditors,  and  the  party  to  whom  the  transfer 
is  made  has  knowledge  of  facts  and  circumstances  from  which 
such  fraudulent  intent  might  reasonably  and  naturally  be 
inferred,  by  an  ordinarily  cautious  person,  then  such  transfer 
is  fraudulent  and  void  as  against  the  rights  of  the  creditors. 
Boies  vs.  Henney,  32  111.,  130. 

§  25.  Honest  Intent  Presumed.— The  court  instructs  the  jury, 
that  the  law  presumes  that  all  persons  transact  their  business 
honestly  and  in  good  faith,  until  the  contrary  appeal's,  from  a 
preponderance  of  the  evidence;  and  the  burden  of  proving 
fraud  is  always  on  the  i^arty  alleging  it. 

You  are  instructed,  that  all  persons  are  presumed  to  be 
innocent  of  intentional  M-rong    until    they  are  proved  to  be 


224  FEACDS    AGAINST     CKEDITOES. 

guilty;  and  all  persons  are  presumed  to  transact  their  business 
in  good  faith,  and  for  a  lawful  purpose;  and  when  an  act  can 
as  well  be  attributed  to  an  honest  intent  and  purpose,  as  to  a 
corrupt  or  unlawful  one,  then  the  jury  are  bound  to  attribute 
the  act  to  an  honest  intent  and  to  a  lawful  purpose. 

CHATTEL  MOETGAGE  AS  AGAINST    JUDGMENT  CEEDITOKS. 

Note. — The  validity  and  legal  effect  of  chattel  mortgages  are  mostly 
matters  of  statutory  regulation.  The  following  instructions,  relating  to 
chattel  mortgages,  are  drawn  with  reference  to  the  laws  of  Illinois. 

§  26.  Good  Between  the  Parties  without  Recording. — The  court 
instructs  the  jury,  that  the  chattel  mortgage,  introduced  in 
evidence  in  this  case,  if  made  and  received  in  good  faith  on  the 
part  of  the  mortgagee,  is  sufficient  to  invest  him  with  the 
right  to  take  the  property  therein  described  and  to  retain  it  for 
the  purpose  of  selling  it,  as  provided  in  the  mortgage,  even 
though  it  has  not  been  recorded  as  required  by  law.  Fuller 
vs.  Paige,  26  111.,  358. 

§  27.     As  to  Creditors,  Must  be  Acknowledged  and  Recorded. — 

The  jury  are  instructed,  that,  as  between  the  parties  to  it,  a 
chattel  mortgage  is  valid  and  binding  without  being  acknowl- 
edged or  recorded,  as  provided  by  statute. 

But  to  render  a  chattel  mortgage  valid  as  to  third  parties, 
such  as  creditors  and  purchasers,  in  good  faith,  it  must  be  ac- 
knowledged before  the  justice  of  tlie  peace  in  the  town  where 
the  mortgagor  resides,  and  an  entry  of  the  mortgage,  contain- 
ing a  description  of  the  pro]oerty  mortgnged,  must  be  entered 
on  the  justice's  docket;  and  tiie  mortgage  must  also  be  filed 
for  record  in  the  office  of  the  recorder  of  deeds  of  the  county 
where  the  mortgagor  resides. 

If  the  chattel  mortgage  is  not  acknowledged  before  a  justice 
of  the  peace  of  the  town  wliei-e  the  mortgagor  resides,  and  an 
entry  of  it  made  on  his  docket,  or  if  it  is  not  filed  for  record 
in  the  office  of  the  recorder  of  deeds,  then,  as  to  the  creditors 
of  the  mortgagor,  it  will  be  invalid,  and  they  may  levy  an  ex- 
ecution on  the  property,  as  though  no  mortgage  had  been 
made.     Porter  vs.  Dementi  35  111.,  478. 

The  jury  are  further  instructed,  that  a  chattel  mortgage  not 


FRAUDS    AGA.INST    CKEDITOKS.  225 

acknowledojed  or  recorded,  though  obh'gatory  and  binding  be- 
tween the  parties  to  it,  is  void  as  to  creditors  and  uurciiasers 
in  good  faith.     Forest  vq.  Tink/iam,  2d  IU.,  1-11. 

§  28.  Mortgagee  Must  See  to  Statutory  Retinirements. — The 
court  instructs  the  Jury,  that  it  is  the  duty  of  the  mortgagee  to 
see  that  his  mortgage  is  entered  upon  the  docket  of  the  jus- 
tice before  whom  it  was  acknowledged,  and  to  see  that  a  cor- 
rect description  of  the  property  covered  by  the  mortgage  is 
entered  upon  the  justice's  docket;  otherwise,  if  the  property? 
or  any  portion  of  it,  is  incorrectly  or  erroneously  described  on 
the  docket,  in  any  material  particulai-,  the  mortgage  itself  will 
be  invalid,  as  against  purchasers  and  creditors,  so  far  as  the 
misdescription  extends. 

It  is  the  business  of  the  mortgagee  to  see  that  all  these 
requisites  to  the  validity  of  the  mortgage  are  complied  with, 
for  the  omission  to  do  so  will  be  at  his  peril. 

§  29.     Acknovvledgraent    and    Recording,    How   Proved. — The 

court  instructs  the  jury,  that  the  certificate  of  the  justice  of 
the  peace,  indorsed  on  the  mortgage,  \'&  jprhna  facie  evidence 
that  the  mortgage  was  duly  acknowledged  before  such  justice, 
and  entered  upon  his  docket  as  required  by  law.  And  the  cer- 
tilicate  of  the  recorder,  indorsed  on  the  mortgage,  is  'priina 
facie  evidence  that  it  was  duly  recorded  at  the  time  therein 
stated. 

§   30.     Mortgagee  Must  Take  Possession  of  the  Property,  When. 

— The  court  instructs  the  jury,  that  the  law  requires  a  person 
having  a  chattel  mortgage  on  property,  in  order  to  hold  the 
property  as  against  innocent  purchasers  and  creditors,  to  take 
possession  of  the  property,  under  the  mortgage,  as  soon  as  it 
can  reasonably  be  done,  after  the  debt  which  it  is  made  to 
secure  becomes  due.  If  there  is  any  unnecessary  delay  in  tak- 
ing such  possession  of  the  property,  then  the  property  will  be 
liable  to  be  levied  upon,  or  sold  as  the  property  of  the  mort- 
gagor.    Barbour  vs.   White^  37  111.,  161:. 

§  31.     Fraudulent  Mortgage  Void. — In  determining  the  ques- 
tion, whether  the  mortgage  in  this  case  was  made   in  good 
15 


226  FRAUDS    AGAINST     CREDITORS. 

faith,  the  jury  should  take  into  consideration  all  the  facts 
and  circumstances  prove  1  on  the  trial;  and  if  the  jury  believe, 
from  all  the  evidence  in  the  case,  that  the  mortgage  was  not 
made  in  good  faith,  or  for  a  valuable  consideration,  but  was 
made  for  the  purpose  of  covering  up  the  property  of  the 
mortgagor,  so  as  to  keep  it  from  his  creditors,  then  these 
facts  would  render  the  mortgage  f]-andulent  and  void,  as  to 
third  persons  having  claims  or  liens  on  the  property  covered 
by  the  mortgage. 

That  although  3'ou  may  believe,  from  the  evidence,  that  the 
mortgagor  was  indebted  to  the  plaintiff,  to  the  amount  of  the 
debt  mentioned  in  the  mortgage,  at  the  time  the  same  was 
made,  still,  if  you  further  believe,  from  the  evidence,  that 
the  parties  to  the  mortgage  put  a  much  larger  amount  of 
property  in  the  mortgage  than  was  reasonably  necessary  to 
secure  the  said  debt,  and  that  such  excess  of  property  was  put 
into  the  mortgage  by  the  parties  thereto  for  the  purpose  of 
covering  the  same  up,  and  with  an  intent  to  hinder,  delay  (ir 
defraud  the  creditors  of  said  mortgagor  in  the  collection  of 
their  debts,  these  facts  would  render  the  said  mortgage  void 
as  to  such  creditors,  and  you  should  find  for  the  defendant. 

§  32.  Note  for  More  than  Amount  Due. — Although  the  jury 
may  believe,  from  the  evidence,  that  there  was  a  good  con- 
sideration for  the  said  note,  to  the  extent  of  8125,  still,  if  the 
jury  further  believe,  from  the  evidence,  that  there  was  no 
consideration  for  more  than  that  amount,  and  that  the  said 
note  and  chattel  mortgage  were  given  for  a  greater  amount 
than  was  due,  for  the  purpose  of  defrauding,  hindering  and 
delaying  creditors  of  the  said  mortgagor,  then  the  said  note 
and  mortgage  are  wholly  void,  and  confer  no  right  whatever 

upon  the  said,  etc., not  even  for  the  §125.     See  Hoey  vs. 

Plerro)i,  67  Wis.,  262. 

§  33.  3Iortga;2;e  of  Stock  of  Goods. — The  court  instructs  the 
jury,  that  a  chattel  mortgage  of  a  stock  of  goods,  used  in  the 
way  of  retail  trade,  and  where  the  mortgagor  is  allowed  to 
continue  in  the  possession  of  the  property,  and  to  sell  the 
goods  in  the  usual  course  of  trade,  is,  in  law,  fraudulent  and 
void,  as  against  the  creditors  of   the  mortgagor,  no   matter 


FRAUDS    AGAINST    CREDITORS.  227 

wliotlicr  tlie  parties  intended  any  actual  fraud  or  not.  Davis 
vs.  Hansom,  18  111.,  39!;  Cheatham  vs.  IJawHns,  80  X.  C, 
161;  Peiser  vs.  Peticolas,  50  Tex.,  638;  Anderson  y&.  Patter- 
son^ 6-1  Wis.,  557. 

§  34.  Eoth  Parties  Must  Intend  the  Fraud. — Although  tlie 
jury  may  believe,  from  the  evidence,  that  the  said  A.  13.  made 
the  chattel  mortgage,  with  intent  to  defraud,  hinder  or  delay 
his  creditors,  still,  if  the  jury  further  believe,  from  the  evi- 
dence, that  the  plaintiff  was  not  a  party  to  such  fraud,  and  had 
no  notice  or  knowledge  of  such  fraudulent  intent,  but  took 
the  mortgage  in  good  faith  and  to  secure  a  bona  fide  indebted- 
ness, then  the  plaintiff  will  in  no  manner  be  aft'ected  by  the 
fraudulent  intent  and  purposes  of  the  said  A.  B. 

If  you  further  believe,  from  the  evidence,  that  the  mort- 
gage was  acknowledged  before  a  justice  of  the  peace  of  the 
town,  in  which  the  mortgagor  lived  at  the  time,  and  that  it 
was  entered  upon  his  docket,  and  then  filed  for  record  in  the 
recorder's  office  of  this  county;  and  further,  that  it  was  so 
filed  before  the  execution  in  /question  came  into  the  hands  of 
tiie  officer  (o/"  loas  levied  on  the  pro2)ertij),l\\Qn  you  should  find 
the  property  in  the  plaintiff. 

§  35.  Good  Faith,  How  Proved. — The  court  instructs  the 
jury,  that  in  order  to  prove  the  good  faith  of  the  note  and 
mortgage,  it  is  not  necessary  for  the  mortgagee  to  show  the 
consideration  by  those  who  saw  the  same  paid  or  delivered. 
It  may  be  shown  by  the  proof  of  facts  and  circumstances 
which  indicate  good  faith  and  valuable  consideration. 

§  36.  Intent  to  Defraud  Must  Exist  at  Time  of,  etc. — To  ren- 
der a  chattel  mortgage  fi-audulent,  the  intent  to  defraud  must 
exist  when  the  mortgage  is  made.  The  mortgagor's  subse- 
quent conduct  in  dealing  with  the  property,  while  it  may  be 
considered  by  the  jury  in  determining  whether  there  was 
fraud  in  the  making  of  the  mortgage,  will  not  itself  ]-ender 
the  mortgage  void.     Ilorton  vs.   Williams,  21  Minn.,  187. 

§  37.  Subsequent  Acts  will  not  Render  Void. — If  the  jury 
believe,  from  the  evidence,  that  the  chattel  mortgage  in  ques- 


228  FRAUDS    AGAINST     CEEDITOKS. 

tion  was  ori,o-inallj  made  in  good  faith,  and  to  secure  a  l>ona 
fide  indebtedness,  tlien  the  mode  of  sale  under  the  mortgage, 
or  the  disposition  of  the  property  remaining  after  payment  of 
the  indebtedness  secured  by  the  mortgage,  can  have  no  effect 
to  render  the  mortgage  itself  invalid  or  fraudulent,  at  the 
time  it  was  made. 

§  3S.  Sale  by  Mortgagor. — If  the  jury  believe,  from  the 
evidence,  that  the  chattel  mortgage  introduced  in  evidence 
was  made  in  good  faith,  and  to  secure  a  hona  fide  indebted- 
ness, then,  even  though  the  jury  should  further  believe,  from 
the  evidence,  that  the  mortgagor,  from  time  to  time,  sold  off 
certain  portions  of  the  property,  with  the  knowledge  and  con- 
sent of  the  mortgagee,  these  facts  alone  would  not  render  the 
mortgage  void  as  to  the  balance  of  the  property.  Jaffray  vs. 
Greenbaum,  64  la.,  492. 

§  39.  Mortgage  to  Secure  Future  Advances. — The  court 
instructs  the  jury,  that  a  chattel  mortgage,  made  in  good 
faith,  to  secure  an  existing  indebtedness,  and  also  further 
advances,  may  be  a  good  and  valid  mortgage.  It  is  not  essen- 
tial to  the  validity  of  such  a  mortgage  that  it  should  show,  on 
its  face,  that  it  was  made  in  part  to  secure  such  future  advances. 
Bump  on  Fraud.  Conv.,  229;  Speer  vs.  Skinner^  35  111.,  282  ; 
Miller  vs.  Locl'ioood,  32  Is".  Y.,  293;  Shirras  vs.  Craig,  7 
Cranch,  34;  Tulley  vs.  JJarlow,  35  Cal.,  302;  Broion  vs. 
Kiefer,  71  K  Y.,  610. 

If  yoti  belie\'e,  from  the  evidence,  that  the  note  and  mort- 
gage in  this  case,  were  given  to  secure  an  actual  indebtedness 
existing  at  the  time,  as  well  as  to  secure  furtlier  advances, 
loans  or  credits,  contemplated  by  the  parties  at  tlie  time  the 
morti^age  was  made,  then  the  fact  that  the  note  and  mort- 
gage were  made  for  more  than  was  actually  due  at  the  time, 
does  not  alone  render  them  void. 

You  are  instructed  that  although  the  taking  of  the  mort- 
gage by  the  mortgagee  for  a  greater  amount  than  was  actually 
due  may  be  regarded  as  one  of  the  badges  of  fraud,  yet  this 
fact  alone  does  not  render  the  mortgage  fraudulent  or  void,  if 
no  fraud  was  really  intended.     Pilie  vs.  Colvin,  67  111.,  227. 

If  you  believe,  from   the  evidence,  that   the  consideration 


FRAUDS   AGAINST     CREDITORS.  229 

of  tlie  note  and  mortgage  in  question,  was,  in  part,  a  former 
indebtedness,  due  from  the  mortgagor  to  the  mortgagee,  and 
in  part  for  money  loaned  at  tlie  time  they  were  given,  and  in 
yiavt  to  secure  future  advances  agreed  to  be  made  by  the  mort- 
gagee to  the  mortgagor,  this  would  not  render  the  mortgage 
void,  if  made  in  good  faitli,  and  not  to  hinder,  delay  or 
defraud  creditors. 

§  40.  Possession  by  the  Mortgagee. — If  the  jury  believe,  froin 
the  evidence,  that  the  mortgagee  had  taken  possession  of  the 
property  in  question  under  the  mortgage,  and  was  in  posses- 
sion of  it  at  the  time  the  attachment  writ  was  levied,  then  it  is 
immaterial  whether  the  mortgage  was  recorded  or  acknowl- 
edged before  the  justice  of  the  peace  in  the  town  where  the 
mortgagor  lived. 

If  you  believe,  from  the  evidence,  that  the  mortgage  in- 
troduced in  evidence  in  this  case,  was  made  in  good  faith,  and 
given  for  a  good  and  valuable  consideration,  and  that  the 
mortgagee  had  taken  the  property,  and  was  in  possession  of  it 
under  the  mortgage  when  the  attachment  writ  (or  execution) 
was  issued  and  levied,  then  the  mortgagor  had  but  a  right  of 
redemption  in  the  property,  and  this  right  would  not  be  sub- 
ject to  be  taken  by  the  creditors  of  the  mortgagor,  unless  they 
first  paid  to  the  mortgagee  the  amount  of  his  claim  against 
the  property.     Nash  vs.  Normeiit^  5  Mo.  App.,  5-15. 

§  41.  Possession  by  the  Mortgagor  after  Default. — The  jury 
are  instructed,  as  a  matter  of  law,  that  when  mortgaged  chattels 
have  been  reduced  to  possession,  after  default,  and  tlie  title 
has  become  absolute  in  the  mortgagee,  he  may  then  loan  the 
property  to  the  mortgagor,  precisely  as  he  nn'ght  any  of  his 
otiier  property,  and  such  repossession  by  the  mortgagor  would 
not  render  the  mortgage,  or  tlie  mortgagee's  title  under  it, 
fraudulent  or  void  as  to  creditors.  Furik  vs.  Staats,  24  111., 
632. 

§  42.  Mortgage  to  Secure  Contingent  Liability. — Although  the 
jury  may  believe  from  the  evidence  that  the  said  A.  B.  was 
not  indebted  to  the  ])laintift"  at  the  time  he  made  the  mortgage 
in  question,  still  if  the  jury  further  believe  from  the  evidence 


230  FEAUDS   AGAINST    CREDITORS. 

that  at  tliat  time  the  plaintiff  was  security  for  the  said  A.  B. 
as  (a  giiaraiitor)  on  certain  notes,  etc.,  and  that  the  said  chattel 
nrortii'ago  was  in  good  faith  given  to  secure  the  said  plaintiff 
against  his  contingent  liability  as  such  guarantor,  then  the 
said  mortgage  would  be  a  good  and  valid  security  in  favor  of 
said  plaintiff'.     Goodheart  vs.  Johnson,  8S  III.,  58. 

§  43.  Taking  Possession  before  Debt  Due. — The  jury  are  in- 
structed that  under  the  mortgage  introduced  in  evidence  it 
was  competent  for  the  defendant  to  take  possession  of  and  sell 
the  mortgage  property  at  any  time  when  he  should  deem  him- 
self insecure,  notwithstanding  the  debt  had  not  matured  or  be- 
come due  and  jmyable,  and  if  the  jury  believe,  from  the  evidence, 
that  tlie  property  in  question  was  embraced  in  the  mortgage, 
and  that  the  defendant,  when  he  took  the  property  in  good 
faith,  deemed  himself  insecure,  then  he  had  a  right  to  take  the 
|>roperty,  when  he  did  take  it,  and  on  that  point  the  jury 
should  find  for  the  defendant.  Evan  vs.  Graham,  50  "Wis., 
450. 

§  44.  Sale  by  Mortgagor  for  Benefit  of  Mortgagee. — Althougli 
the  jury  may  believe  from  the  evidence  that  after  the  said 
mortgage  was  given  the  mortgagor  was  permitted  by  the 
plaintiff  to  sell  and  dispose  of  portions  of  the  pro pei'ty  covered 
by  the  mortgage,  still  this  would  not  render  the  mortgage  void 
as  to  the  creditors  of  the  mortgagor,  provided  the  jury  further 
believe,  from  tlie  evidence,  that  the  said  A.  B.  was  actually  in- 
debted to  the  plaintiff — that  the  mortgage  was  made  in  good 
faith  to  secure  such  indebtedness  and  that  the  permission  by 
the  plaintiff  to  sell  such  propei'ty  was  given  in  writing  and 
only  u])on  condition  that  the  avails  of  such  sales  should  be 
turned  over  to  the  plaintiff  to  be  used  in  discharge  of  the  in- 
debtedness secured  by  the  mortgage.  Goodheart  vs.  Johnson, 
88  111.,  58. 


CHAPTER  XXII. 
FRAUDS,  FALSE  EEPRESENTATIONS,  ETC. 


Sec.    1.  False  representations. 

2.  Proof  of  fraud. 

3.  Fraud  is  never  to  be  presumed. 

4.  Degrees  of  proof  required. 

5.  Representations  must  be  of  the  past  or  present. 

6.  Must  be  designed  to  injure. , 

7.  Injury  must  be  shown. 

8.  Scienter  must  appear  from  the  evidence. 

9.  Expressions  of  opinion,  bragging,  etc. 

10.  Representation  as  to  law. 

11.  Mere  silence  is  not  fraud,  when. 

12.  Purchaser  knowing  himself  insolvent. 

13.  Purchase  with  intent  not  to  pay. 

14.  Drawing  check  without  funds. 

15.  Sale  of  personal  property — Concealed  defects. 

16.  Purchaser  must  exercise  reasonable  care. 

17.  Contract  procured  by  fraud. 

18.  Stating  as  true — When  a  party  has  no  reason  for  belief,  etc. 

19.  Suit  for  fraud,  what  must  be  proved. 

20.  All  the  representations  need  not  be  proven. 

21.  Action  not  on  the  contract. 
-  22.  Co-defendant  not  guilty. 

23.  Sales — Procured  by  fraud. 

24.  Right  to  rescind. 

25.  Sale  not  void,  but  voidable. 

26.  Contract  may  be  ratified,  how. 

27.  What  is  a  ratification. 

28.  Innocent  purchaser  from  fraudulent  vendee.  ' 

29.  Purchaser  without  notice. 

30.  Transferred  in  payment  of  debt. 

31.  Attaching  or  execution  creditor. 

32.  Purchaser  must  exercise  reasonable  caution. 

33.  Only  bound  to  exercise  reasonable  caution. 

§  1.  False  Representations. — The  court  instructs  the  jury,  as 
a  matter  of  law,  that  if  one  person  represents  to  another  as 
true  that  which  he  knows  to  be  false,  and  makes  the  represen- 
tation in  such  a  waj  and  under  sucli  circumstances  as  to  induce 

(231) 


232  FRAUDS,      FALSE    EEI'EESENTATIOKS,    ETC. 

a  reasonable  man  to  believe  that  tbe  matter  stated  is  true,  and 
the  representation  is  meant  to  be  acted  upon,  and  the  person 
to  whom  the  representation  is  made,  believing  it  to  be  true, 
acts  npon  the  faith  of  it,  and  suffers  damage  thereby,  this  is 
fraud  sufficient  to  sustain  an  action  for  deceit.  2  Hill  on  Torts, 
13S;  Coolej  on  Torts,  175. 

§  2.  Proof  of  Fraud. — The  court  instructs  the  jury,  that 
while  fraud  is  not  to  be  pi-esumed  without  proof,  yet  fraud, 
like  any  other  fact,  may  be  proved  by  proving  circumstaiices 
from  which  the  inference  of  fraud  is  natural  and  irresistible; 
.ind  if  such  circumstances  are  proved,  and  they  are  of  such  a 
character  as  to  produce,  in  the  mind  of  the  jury,  a  conviction 
')f  the  fact  of  fraud,  then  it  must  be  considered  that  fraud  is 
proved.  Cooley  on  Torts,  475;  Watkins  vs.  Wallace,  19 
Mich.,  57;  Da?iiel  vs.  Baca,  2  Cal.,  326;  Waddingham  vs. 
Loiker,  44  Mo.,  132;  Strausi  vs.  Kranert,  56  111.,  254;  Bumpus 
vs.  BunJtUs,  59  Mich.,  95. 

That  while  it  is  true  the  law  never  presumes  fraud  without 
some  evideuce  of  it,  yet  in  order  to  show  fraud,  direct  and 
positive  proof  is  not  required;  the  jury  may  infer  fraud  from 
the  circumstances  proved  by  the  evidence,  if,  in  the  mind  of 
tlie  jury,  they  are  such  as  to  show  that  a  fraud  was  practiced, 
as  charged  in  the  declaration. 

The  jury  are  instructed,  as  a  matter  of  law,  that  fraud  may 
be  proved  by  circumstantial  evidence,  as  well  as  by  direct  and 
positive  proof.  It  may  be  inferred  from  strong  presumptive 
circumstances.  And  if  the  jury  believe,  from  all  the  evidence 
in  this  case,  that  {repeating  the  charges  in  the  declaration), 
then  the  jury  should  tind  for  the  plaintiff. 

§  3.  Fraud  is  Never  to  be  Presumed,  but  must  be  affirm- 
atively proven  by  the  party  alleging  the  same.  The  law  pre- 
sumes that  all  men  are  fair  and  honest — that  their  dealings  are 
in  good  faith,  and  without  intention  to  disturb,  cheat,  hinder, 
delay  or  defraud  others;  where  a  transaction  called  in  question 
is  equally  ca])aiye  of  two  constructions — one  that  is  fair  and 
lionest  and  one  that  is  dishonest — then  the  law  is  that  the  fair 
and  honest  construction  must  ])revail  and  the  transaction  called 
in(]uestion  nuist  be  presumed  to  be  fair  and  honest.  Schroeder 
vs.  WaUh,  120  111.,  410. 


FKAUnS,    FALSE    KEPEESENTATIONS,    ETC.  266 

§  4.  Degree  of  Proof  Requirod. — -That  Avliile  it  is  true  that 
the  party  alleging  fraud  must  prove  it,  yet,  in  a  civil  action 
like  this,  the  party  alleging  the  fraud  is  not  bound  to  prove  it 
beyond  a  reasonable  doubt.  It  is  sutRcient  if  the  fact  of  fraud 
is  establisiied,  in  the  minds  of  the  jury,  by  the  greater  weight 
of  the  evidence.  If,  after  a  consideration  of  all  the  facts  and 
circumstances  proved,  the  jury  believe,  from  the  evidence,  the 
defendant  was  guilty  of  the  fraud,  as  charged  in  the  declara- 
tion, and  that  the  plaintiff  has  sustained  damage  thereby,  they 
should  lind  the  issues  for  the  plaintiff. 

,    §  5i     Representations  must  be  of   the  Past  or   Present. — The 

jhi-y  are  instructed,  that  before  a  party  can  annul  or  treat  a 
contract  as  void,  by  reason  of  alleged  false  or  fraudulent  rep- 
resentations used  in  procuring  it  to  l3c  made,  it  must  appear, 
from  the  evidence,  that  the  alleged  false  or  fraudulent  repre- 
sentations were  made  regarding  something  which  has  already 
transpired,  or  was  then  alleged  to  exist.  No  statement  of  one's 
opinions  as  to  what  will  or  will  not  happen,  or  exist,  in  the 
futui'e,  can  affect  a  contract  or  render  it  void.  Every  j:)crson, 
in  making  a  contract,  is  at  liberty  to  speculate  or  express 
opinions  as  to  future  events,  and  he  cannot  be  held  to  answer 
for  their  truth  or  falsity.  Cooley  on  Torts,  483,  4S6;  Payne 
vs. /S'm^■^;^,  20  Ga.j  654;  Eeed  \&.  SkJener,2>'i  Ind.,  373;  Bristol 
vs.  Braidwood^  28  Mich.,  191;   Tuck  vs.  Downing^  76  111.,  71. 

§  6.  Must  be  Designed  to  Injure. — The  jury  are  instructed, 
that  in  order  to  constitute  actual  fraud  there  must  be  contriv- 
ance and  design  to  injure  anotlier.  Actual  fraud  is  not  to  be 
presumed,  but  it  must  be  proved  by  the  party  alleging  it,  by  a 
preponderance  of  evidence;  and  although  actual  fraud  may  be 
])roved  by  proof  of  facts  and  circumstances  tending  to  show 
fraud,  still,  if  the  motive  and  design  of  an  act  can  as  well  be 
traced  to  an  honest  and  legitimate  source  as  to  a  corrupt  or 
dishonest  one,  the  former  must  always  be  preferred. 

§  7.  Injury  Must  be  Shown, — The  jury  are  instructed,  that 
in  order  that  the  defendant  may  avail  himself  of  the  defense 
of  fraud,  set  up  in  the  pleas  in  this  case,  the  jury  must  be- 
lieve, from   the   evidence,  not   only  that  the   statements  and 


2  3 J:  FEAUDS,    FALSE    EEPEESENTATIONS,     ETC. 

representations  set  forth  in  said  pleas  were  made,  but  also  tliat 
such  statements  and  representations  were  false — that  they 
were  made  with  intent  to  deceive  and  defraud  the  defendant 
— that  the  defendant  was  induced  thereby  to  enter  into  the 
contract,  and  that  he  has  snstained  damage  by  reason  thereof, 
Mitchell  vs.  Deeds,  49  111.,  410;  Cole  vs.  Miller,  CO  Ind., 
463. 

The  court  instructs  you  that  a  mere  fraudulent  representa- 
tion is  not  of  itself  actionable.  To  entitle  the  plaintiff  to 
recover,  he  must  not  on!}'-  show,  by  preponderance  of  evi- 
dence, that  the  representations  were  made,  and  that  they  were 
fal.<e  and  fraudulent,  but  he  must  also  show  affirmatively,  by  a 
preponderance  of  evidence,  that  he  has  been  injured  thereby 
— that  lie  is  in  some  way  placed  in  a  worse  condition  than  he 
would  have  been  had  the  statements  been  true.  Bartlett  vs. 
Blaine,  83  111.,  25. 

§  8.  Scienter  Must  Appear  from  the  Evidence .^ — The  jury  are 
instructed,  that  while  fraud  vitiates  every  contract,  every 
false  affirmation  does  not  amount  to  fraud.  To  constitute 
fraud,  a  knowledge  of  the  falsity  of  the  representation  must 
rest  with  the  ]xarty  making  it,  and  the  representatiim  must 
be  made  with  the  intention  that  the  other  party  shall  act  upon 
it,  and  it  must  also  appear  that  the  other  party  did  act  u]ion 
the  representation,  to  his  injury.  Walker  vs.  Hough,  59  111., 
375;  Dwight  vs.  Chase,  3  111.  App.,  67. 

§  9.  Expression  of  Opinion,  Bragii^ing,  etc.— The  jury  are 
instructed,  that  a  purchaser  cannot  maintain  an  action  against 
his  vendor  for  false  statements  in  regard  to  the  value  of  the 
property  purchased,  or  its  good  qualities,  or  the  price  he  has 
been  offered  for  it.  Dillnmn  vs.  Nadelhoffer,  19  111.  App., 
375. 

That  when  a  party,  capable  of  taking  care  of  his  own  inter- 
ests, makes  a  bad  or  losing  bargain,  the  law  will  not  assist  him, 
unless  deceit  has  been  practiced,  against  which  ordinary  care 
could  not  protect  him.  Hoetling  vs.  Wright,  72  111.,  390; 
Reel  vs.  Eioing,  4  Mo.  App.,  569;  Livingston  vs.  Stro/ig,  107 
111,  295. 

You  are  instructed,  that  when  parties  are  negotiating  a  trade 


FEAUDS,    FALSE    KEPKESENTATIONS,     ETC.  235 

for  ]';ro!;ertj,  wliicli  tlierc  is  an  opportunity  for  examinin^j 
each  lias  a  right  to  exalt  the  value  of  his  own  property  to  the 
highest  point  the  other  party's  credulity  will  bear,  and  dejn'e- 
ciate  the  value  of  the  other's  property.  Such  boastful  asser- 
tions, or  highly  exaggerated  descriptions,  do  not  amount  to 
fraudulent  misrepresentation  or  deceit.  In  such  case,  the 
parties  are  npon  equal  groimd,  and  their  own  judgments  must 
be  their  guide  in  coming  to  conclusions.  Couley  on  Torts, 
483;  Payne  vs.  Smith,  20  Ga.,  654;  Bristol  vs.  Braidwood,  28 
Mich.,  191;  Miller  vs.  Craig,  30  111.,  109;  Reed  vs.  Sidener, 

32  Iiid.,  373;  iLllis  vs.  Andrews,  ^Q  N.  Y.,  83;  Bante  vs. 
Savage,  12  N"ev.,  151. 

All  statements  by  a  vendor  of  the  value  of  property  sold, 
are  not  necessarily  matters  of  opinion;  if  the  vendor,  know- 
ing them  to  be  untrue,  makes  thein  with  the  intention  of  mis- 
leading the  purchaser,  and  of  inducing  him  to  forbear  making 
inquiries  as  to  the  value  of  the  propertj^;  and  if  the  vendee 
has  not  equal  means  of  knowledge,  and  is  induced  by  the  state- 
ments of  the  vendor  to  forbear  making  inquiries  which  he 
otherwise  would  have  made,  and,  relying  on  such  statements, 
is  misled,  to  his  injury,  he  may  avoid  the  contract  or  recover 
damages  for  the  injury.  Slmar  vs.  Canada f/,  53  N.  Y.,  298 ; 
JVoiolin  vs.  Snow,  40  Mich.,  699 ;  Bacon  vs.  J^'risbie,  15  Ilun 
(N.  Y.),  26. 

§  10.  Representation  as  to  the  Law. — That  a  representation 
as  to  what  the  law  will  or  will  not  permit  to  be  done,  or  a 
representation  regarding  the  legal  rights  of  a  party,  is  one 
upon  which  the  party  to  whom  it  is  made,  has  no  right  to 
rely;  and  if  he  does  so,  it  is  his  own  folly,  and  he  cannot  ask  the 
law  to  relieve  hira  from  its  consequences.     J^tsh  vs.  Clelland, 

33  111.,  238;  Tounsend  vs.  Cowles,  31  Ala.,  428;  People  vs. 
Supervisors,  etc.,  27  Cal.,  655;  Rogers  vs.  Place,  29  Ind.,  577; 
Upton  vs.  Tribilcoclc,  91  U.  S.  Rep.,  45-49;  Am.  Ins.  Co.  vs. 
Capps,  4  Mo.  App.,  571. 

§  11,  Mere  Silence  is  not  Fraud, AVhen. — That  mere  silence  or 
a  failure  to  communicate  facts  within  the  sellers  knowledge, 
is  not  such  a  fraud  as  will  avoid  a  contract,  or  render  the  seller 
liable.     To   have    that   effect,   there   must   be  some  conceal- 


236  FKATJDS,    FALSE    EEPEESENTATIONS,     ETC. 

meni,  as  bj  witliliolding  information  when  asked,  or  usinsj 
some  trick  or  device  to  mislead  the  purchaser.  The  seller 
may  let  the  purchaser  cheat  himself,  if  he  sees  fit  to  do  so, 
but  he  must  not  assist  him,  even  to  cheat  himself.  Kohl  vs. 
Lhidley,  39  111.,  195. 

§  12.  Piirdiaser  Knowing  Himself  Insolvent. — The  jury  are 
instructed,  that  although  they  may  believe,  from  the  evidence, 
that  the  defendant,  at  the  time  he  purchased  the  goods  in 
question,  was  insolvent  and  knew  himself  to  be  so,  and  did 
not  disclose  that  fact  to  tlie  person  of  whom  he  purchased  the 
goods,  still  the  defendant  would  not  be  guilty  of  fraud  so  as 
to  vitiate  the  contract  of  sale;  provided,  the  jury  further 
believe,  from  the  evidence,  that  he  then  intended  to  pay  for  the 
goods,  and  had  reasonable  grounds  for  believing  that  he 
would  be  able  to  do  so.  Talcott  vs.  Ileaderson,  31  Ohio  St., 
162. 

§  13.  Piircliase  with  Intent  not  to  Pay. — The  jury  are 
instructed,  as  a  matter  of  law,  that  in  order  to  render  a  pur- 
chase of  propei'ty  fraudulent,  as  between  the  parties,  it  is  not 
necessary  that  there  should  have  been  any  false  representa- 
tions made  by  the  purchaser  to  effect  his  purpose.  If  the 
jniy  believe,  from  the  evidence,  and  fj'om  the  facts  and  cir- 
cumstances proved  on  the  trial,  that  the  purchase  in  question 
was  made  by  the  purchaser  with  the  intention  not  to  pay  for 
the  property,  then  the  transaction  was  fraudulent  and  void, 
and  vested  no  title  in  the  purchaser.  Cooley  on  Torts,  477; 
Bowen  vs.  Sehiile7\  41  111.,  192;  Shipinaoi  vs.  Sei/mou?;  4 
Mich.j  274;  Flower  vs.  Farewell,  18  III.  App.,  254. 

§  14.  Drawing  Check  withont  Funds. — The  jury  are  in- 
structed, that  a  person  who  draws  a  check  or  order  upon  a 
person  in  whose  hands  he  lias  no  funds,  and  who  he  has  no  reason 
to  believe  will  honor  the  check  or  order,  is  guilty  of  fraud; 
and  if  he  thereby  acquires  possession  of  property,  the  owner 
may  repudiate  the  sale,  and  bring  trover  or  replevin  for  the 
property  so  obtained.     Mathews  vs.  Cowan^  59  111.,  341. 

§   15.     Sale  of  Personal  Property — Concealed  Defects. — If  the 


.,  ._..  ..._._,..._.,   ^:r 


FEAUDS,    FALSE     KEPEESENTATIONS,     ETC. 


jury  believe,  fi-om  the  evidence,  that  the  ]ilaintifl:  bon<>'ht  the 
horse  in  question  from  the  defendant,  and  that  the  defendant 
shortly  befi>re,  and  at  the  time  of  the  sale,  stated  and  repre- 
sented to  the  ]ilaintiff  that  the  horse  was  sound  and  true,  and 
that  the  ]ilaintitf  believed  such  statements  and  ro])rescntations, 
and  relied  ui)on  them  in  making  the  purchase;  and  if  the  jury 
further  believe,  from  the  evidence,  that  at  the  time  such 
representations  and  sale  were  made,  the  said  horse  was  not 
sound,  but  then  had  a  concealed  disease  or  defect,  which  ren- 
dered him  unsound,  and  which  could  not  be  perceived  by 
ordinary  skill  or  observation  at  the  time,  but  which  was  known 
to  the  defendant,  then  the  defendant  will  be  liable  to  tlie 
plaintiff  for  the  damages  sustained  by  him  by  reason  of  such  un- 
soundness, if  any  has  been  shown  by  the  evidence. 

§  16.  Purchaser  Must  Exercise  Reasonable  Care. — The  jury 
are  further  instructed,  that  if  they  believe,  from  the  evidence^ 
that  the  defect  complained  of  was  of  such  a  nature  and  size, 
and  so  obvious  and  visible  to  the  senses  that  it  could  have  been 
discovered  by  the  exercise  of  ordinary  care  and  diligence,  in 
looking  at  and  examining  the  horse,  then  the  defendant  is  not 
liable  in  this  suit,  unless  the  jury  further  believe,  from  the 
evidence,  that  the  defendant  used  some  artifice  or  trick  to 
prevent  the  plaintiff  from  seeing  or  discovering  the  defect. 
Ward  vs.  Borl:enhagen,  50  Wis.,  4.59. 

§  17.  Contract  Procured  by  Fraud. — If  the  jury  believe, 
from  the  e\'idence,  that  any  untrue  statements,  as  to  the  then 
market  value  of  [live  hogs)  in  the  ( Chicago)  market,  were 
made  by  tlie  plaintiffs,  or  by  their  agent,  as  an  inducement  to 
the  defendant  to  enter  into  the  contract  in  question,  and  that 
the  defendant  relied  upon  such  statements,  and  was  induced 
thereby  to  enter  into  the  contract,  then  such  contract  is  void- 
able as  against  the  defendant,  and  it  cannot  be  enforced  as 
ag-ainst  him. 

If  you  believe,  from  the  evidence,  that  the  parties  made  the 
contract,  as  alleged  by  the  plaintiffs,  still,  if  you  further  be- 
lieve, from  the  evidence,  that  at  the  time  of  the  making  of 
the  contract  the  plaintiffs,  or  either  of  them,  willfully  and 
knowingly,  by  untrue  statements,  deceived  the  defendant  in 


238         FKAUDS,  FALSE  KEPKESENTATIONS.  ETC. 

reo-ard  to  the  then  market  vahie  of  the  property  in  question, 
as  an  inducement  to  him  to  enter  into  the  contract,  and  that 
the  defendant,  nnder  the  circumstances,  was  justified  in  rely- 
ing upon  the  statements  made  to  him.  and  did  rely  upon  them 
in  entering  into  the  contract,  then  the  defendant  cannot  be 
held  to  the  performance  of  such  contract,  and  your  verdict 
should  be  for  the  defendant. 

§  18.  Stating  as  True — When  a  Party  has  noRea«5on  for  Balief, 
etc. — The  court  instructs  the  jury,  that  any  willful  misrei)re- 
sentation  of  a  material  fact,  made  with  a  design  to  deceive 
another,  and  to  induce  him  to  enter  into  a  trade  he  would  not 
otherwise  make,  will  enable  the  party  wlio  has  been  over- 
reached to  annul  the  contract;  and  it  niakes  no  ditference 
whether  the  party  making  the  misrepresentation  knew  it  to  be 
false  or  whether  he  was  ignorant  of  the  facts  stated ;  pro- 
vided, the  matter  stated  was  material,  and  the  party  making 
the  statement  stated  it  as  true,  when,  in  fact,  he  had  no 
apparently  good  reason  for  believing  it  to  be  tr  e,  and  when 
the  other  party,  under  the  circumstances  shown  by  the  evi- 
dence, was  reasonably  justified  in  relying  upon  the  statement, 
and  did  rely  upon  it  in  making  the  trade,  and  was  deceived 
and  injured  thereby.  Cooley  on  Torts,  500;  Beebe  vs.  Kiiapp, 
28  Mich.,  53,  T6;  Alloi  vs.  Eart,  72  111.,  104;  Litchfield  vs. 
Hutchinson,  117  Mass.,  195. 

That  material  representations,  made  by  a  vendor,  of  matters 
assumed  by  liim  to  be  within  his  personal  knowledge,  are  false 
and  fraudulent,  in  a  legal  sense,  if  made  with  intent  to  de- 
ceive the  vendee,  and  if  they  are  untrue,  and  are  relied  u])on 
by  the  vendee  in  making  the  purchase,  to  his  damage,  altliough 
the  vendor  did  not  know  them  to  be  untrue.  Incl.  P.  c6  C. 
Rd.  Go.  vs.  Tijng,  63  N.  Y.,  653. 

The  law  is,  if  a  person  recklessly  makes  a  false  representa- 
tion of  the  ti'uth  of  a  matter  of  which  he  knows  notbing,  for 
the  fraudulent  purpose  of  inducing  another  to  i-ely  upon  liis 
statements,  and  to  make  a  contract  or  do  any  act  to  his  preju- 
dice, and  the  other  party  does  so  rely  and  act  upon  it,  and 
thereby  suffers  an  injury,  the  party  making  the  representation 
is  liable  in  an  action  for  fraud  and  deceit,  as  much  so  as  if  he 
had  known  the  statement  to  be  false  at  the  time  it  was  made. 
Beebe  vs.  K7iapp,  28  Mich.,  53. 


FRAUDS,  FALSE    KEl'JaiSENTATlONS,  ETC.  239 

Whetlier  in  this  case  the  defendant  made  tlie  representa- 
tions alleged,  and  whether  they  were  false  ;  and  if  he  did 
make  them,  whether  they  were  made  for  the  fraudulent  pur- 
pose alleged,  are  questions  exclusively  for  the  jury,  to  be 
determined  by  the  weight  of  the  evidence  in  the  case. 

§  19.  Suit  for  Fraud — What  Must  be  Proved. — The  jury  are 
instructed,  that  this  action  is  founded  upon  a  charge  of  fraud 
and  deceit,  and  in  order  to  constitute  fraud,  within  the  meaning 
of  the  law,  under  the  pleadings  in  this  case,  it  must  appear,  by 
a  preponderance  of  the  evidence,  that  the  defendant  intended 
to  commit  and  did  commit  a  fraud  upon  the  plaintiff,  in  man- 
ner and  form  as  charged  in  liis  declaration,  otherwise  he  can- 
not recover,  and  the  jury  should  find  for  the  defendant. 

That  the  plaintiff  is  not  entitled  to  recover  in  this  case  un- 
less you  believe,  from  the  evidence,  that  tiie  defendant  made 
the  representations  alleged  in  the  declaration;  that  such  repre. 
sentations  were  false;  that  defendant  knew  they  were  false,  or 
had  no  apparently  good  reason  to  believe  they  were  true;  that 
they  were  made  with  intent  to  defraud  the  plaintiff;  that 
plaintiff  was  induced  thereby  to  make  the  trade  in  question, 
and  has  sustained  damage  by  means  thereof.  Cooley  on  Torts, 
474;  JEames  vs.  Morgan,  37  111.,  2G0;  McKowii  vs.  Jt\irgaso)i, 
47  la.,  636. 

§  20.  All  the  Representations  Need  not  be  Proved. — To  en- 
title the  plaintiff  to  recover  in  this  case,  it  is  not  necessary 
that  he  sliould  sliow  that  all  the  representations  charged  were 
made  by  the  defendant,  or,  if  made,  that  they  were  all  untrue; 
it  is  sufficient  if  the  jury  believe,  from  the  evidence,  that 
some  of  the  representations  were  made  as  cliarged,  that  they 
were  untrue  and  known  to  be  so  at  the  time  by  the  defenduTit, 
or  that  he  had  no  good  reason  to  suppose  them  to  be  true,  that 
they  were  calculated  to  deceive  an  ordinarily  cautious  ]:>erson, 
and  were  intended  by  the  defendant  to  deceive  and  defraud 
the  plaintiff — that  without  such  false  and  fraudulent  represen- 
tations the  property  would  not  have  been  delivered  (or  the 
credit  given)  and  tliat  the  plaintiff  has  been  damaged  by  the 
fraudulent  acts  of  the  defendant.  Smith  vs.  The  Sijte,  55 
Miss.,  513;  Beasley  vs.  The  State,  59  Ala.,  20. 


240  FRAUDS,  FALSE    KEi'KESENTATIOXS,  ETC. 

§  21.  Action  not  on  the  Contract. — Tlie  court  instructs  tlie 
jury,  that  this  suit  is  not  brought  upon  the  contract  given  in 
evidence,  but  upon  the  alleged  fraud  and  deceit  set  forth  in 
the  declaration,  and  the  alleged  loss  resulting  therefrom  to  the 
plaintiff;  and  if  the  jury  believe,  from  the  evidence,  that  the 
defendant  was  guilty  of  the  fraudulent  acts  set  forth  and 
charged  in  the  declaration,  and  that  the  plaintiff  has  sustained 
any  damage  or  loss  by  reason  thereof,  then  the  jury  should 
find  the  defendant  guilty,  and  assess  the  plaintiff's  damages. 

§  22.  Co-Defendant  not  Guilty. — Though  the  jury  may  be- 
lieve, from  the  evidence,  that  the  defendant  A.  B.  made  the 
trade  in  question  with  intent  to  defraud  the  plaintiff,  still,  if 
the  jury  further  believe,  from  the  evidence,  that  the  other  de- 
fendants, or  either  one  of  them,  took  no  part  in  the  trade,  and 
had  no  knowledge  of  such  intent,  then  the  act  of  A.  B,  would 
not  bind  such  other  defendant  or  defendants  as  did  not  take 
part  in  the  trade,  and  did  not  have  knowledge  of  such  intent; 
unless  it  further  appears,  from  the  evidence,  that  such  trade 
was  made  in  the  interest  of  such  other  defendant  or  defend- 
ants, or  that  he  or  they  have  since  ratified  the  same. 

If  you  believe,  from  the  evidence,  that  the  transaction  com- 
plained of  took  place  between  the  plaintiff  and  the  defendant 
A.  B.,  and  that  the  other  defendants  had  no  part  in  or  knowl- 
edge of  the  transaction  when  it  occurred,  and  no  interest 
therein,  and  have  not  since  ratified  or  a])]iroved  of  the  act,  as 
explained  in  these  instructions,  then  such  other  defendants 
cannot  be  made  liable  for  the  acts  of  the  said  A.  B. 

§  23.  Sales — Procured  by  Fra'.id. — The  court  instructs  the 
jury,  as  a  matter  of  law,  that  actual  fraud  vitiates  and  will 
render  void,  at  the  election  of  the  party  injured,  all  contracts; 
and  a  fraudulent  ]nirchaser  acquires  no  title  to  goods  procured 
through  fraudulent  representation. 

And  if  a  purchase  of  goods  is  effected  by  means  of  false  and 
fraudulent  representations  on  the  part  of  the  ]Hirchaser,  known 
by  him  to  be  false,  and  which  are  relied  ui)on  by  the  sellei", 
and  but  for  which  he  would  not  have  made  the  sale,  then  the 
seller  docs  not,  as  against  the  purchaser,  lose  his  title  to  the 
goods,  and  he  may  bring  trover  or  re])levin  for  them  against 
the  purchaser,  without  first  making  a  demand  for  them. 


FRAUDS,  FALS7<:    REPRESENTATIONS,  ETC.  241 

And  in  sucli  a  case,  if  the  purcliaser  lias  given  a  note  or 
notes  for  the  price  of  the  goods,  the  seller  may  bring  his  suit 
witliout  making  a  previous  tender  of  the  notes;  provided,  the 
notes  are  produced  at  the  trial  to  be  surrendei-ed  to  the  de- 
fendant. Coghill  vs.  Borinq,  15  Cal.,  213;  Thui'ston  vs. 
Blanchard,  22  Pick.,  IS;  Nichols  vs.  Michael,  23  :N".  Y.,  261. 

§  21.  Right  to  Rescind. — The  court  instructs  the  jury,  that 
the  law  is,  that  where  a  person  is  induced  to  part  with  his 
property,  under  a  contract  procured  by  fraud,  on  discover- 
ing the  fraud  he  may  avoid  the  contract  and  claim  a  return 
of  the  property.  He  has  his  election  to  affirm  or  disaffirm 
the  contract,  but  if  he  disaffirms  it,  he  must  do  so  at  the 
earliest  practicable  moment  after  the  discovery  of  the  fraud. 
Cooley  on  Torts,  503;  Cochran  vs.  Stewart,  21  Minn.,  435; 
Hall  vs.  Fullerton,  69  111.,  448;  Wright  ys.  Pelt,  36  Mich., 
,213;  Pearsoll  vs.  Chapin,  44  Penn.  St.,  9. 

§  25.  Sale  not  Void,  but  Voidable. — That  fraud,  in  the  sale  or 
purchase  of  personal  property,  does  not  render  the  transaction 
void,  but  only  voidable,  at  the  option  of  the  party  defrauded. 
The  vendor,  when  defrauded,  may  either  avoid  the  contract, 
or  he  may  ratify  it,  while  the  property  remains  in  the  hands 
of  the  purchaser;  but  after  the  property  has  passed  into  the 
hands  of  a  Jyonafide  purchaser  from  the  fraudulent  vendee,  the 
seller  cannot  reclaim  the  property.  Mich.,  etc.,  lid.  Co.  vs. 
Fhillips,  60  III,  190. 

§  26.  Contract  May  be  Ratified,  How. — The  court  instructs 
the  jury,  that  even  when  a  sale  of  goods  is  procured  by  the 
fraud  of  the  purchaser,  the  contract  of  sale  is  not  absolutely 
void;  but  the  contract  may  be  either  avoided  or  ratified  by  the 
seller;  and  if  the  seller  does  not,  within  a  reasonable  time  after 
discovering  the  fraud,  do  some  act  showing  an  intention  to 
rescind  the  sale,  he  will  be  held  in  law  to  have  ratified  the 
sale. 

"Where  a  sale  of  goods  is  procured  by  the  fraudulent  repre- 
sentations of  the  purchaser,  the  contract  of  sale  is  not  abso- 
lutely void,  but  it  may  be  either  avoided  or  ratified  by  the 
seller. 

16 


212  FKAUDS,  FALSE    KEPRESENTATIONS,  ETC. 

And  in  tin's  case,  if  you  believe,  from  the  evidence,  that 
tbe  plaintiffs,  after  the}'  discovered  the  fraud  claimed  by  them 
{brought  a  suit  against  tKe  purchaser  for  the  jprice  of  the  goods 
sold),  that  would  be  a  ratification  of  the  sale,  and  the  ])laintiffs 
would  not  now  be  permitted  to  claim  the  goods,  as  agaiiist 
the  creditors  of  the  purchaser,  who  liad  had  an  execution  lev- 
ied upon  them. 

Where  a  ])arty  undertakes  to  rescind  the  contract  of  sale,  on 
the  ground  of  the  fraud  of  the  other  party,  he  must,  as  soon 
as  the  fraud  is  discovered,  take  all  reasonable  measures  to 
rescind  it;  and  if  he  undertakes  to  rescind  the  contract,  he  must 
rescind  the  whole  of  it,  and  if  he  has  received  any  money,  or 
other  valuable  thing  under  the  contract,  he  must  return,  or 
offer  to  return  the  same,  so  as  to  place  both  parties  in  the  same 
condition  that  they  were  in  before  the  sale.  Cooley  on  Torts, 
504;  2  Hill,  on  Torts,  141;  Balcoek  vs.  Case,  Gl'Penn.  St., 
427;  Jeioett  vs.  Petit,  4  Mich.,  508;  Coghill  vs.  Boring,  15 
Cal.,  213. 

§  27.  "Wliat  is  a  Ratifioation. — The  jury  are  instructed,  that 
when  a  party  has  been  induced  to  sell  property  on  credit  by 
fraudulent  means,  he  has  his  election  either  to  affirm  the  sale 
or  to  disaffirm  it  on  the  ground  of  fraud ;  and,  in  such  a  case, 
if  the  seller,  with  a  knowledge  of  all  the  material  facts  affect- 
ing his  interest,  takes  any  steps  to  enforce  the  payment  of  the 
price  agreed  upon,  or  puts  it  out  of  his  power  to  restore  the 
other  party,  as  nearly  as  ])ossible,  to  the  same  position  he  was 
in  before  the  sale,  he  will  be  held  to  have  elected  to  affirm  the 
sale. 

§  28.  Innocent  Purchaser  from  Fraudulent  Vendee. — The  court 
instructs  the  jury,  that  when  a  ]iei'son  who  has  ])ni'chased  goods 
and  obtained  possession  of  them  l\y  false  and  fraudulent  rep- 
resentations, sells  them  to  an  innocent  purchaser  for  value 
before  they  are  reclaimed  by  the  vendor,  such  innocent  pur- 
chaser will  acquire  a  valid  title  to  the  goods.  Cochran  vs. 
Stewart,  21  Minn.,  435;  Ohio,  etc.,  Rd.  Go.  vs.  Kerr,  49  111., 
458;  2  Hill,  on  Torts,  143. 

When  a  party  sells  goods  and  delivers  them  to  the  pur- 
chaser  under  circumstances  which    would  authorize  liim  to 


FRAUDS,  FA.I.SE   EEPKESENTATIONS,  ETC.  248 

rescind  tlie  sale  as  against  tlie  purchaser,  yet,  if  1  efore  tliesale 
is  rescinded  the  purchaser  sell  them  or  ])]edge  them  as  secu- 
rity for  an  advance  of  money,  to  an  innocent  party,  without 
notice  of  the  fraud,  tnich  innocent  party  will  liold  the  goods 
as  against  the  original  owner. 

§  29.  Purchaser  without  Notice,  etc. — The  jury  are  further  in- 
structed, that  to  entitle  the  plaintiff  to  reclaim  the  goods  from  the 
defendant,  the  jury  must  believe,  from  the  evidence,  that  M. 
obtained  the  goods  in  controversy  from  the  plaintiff  by  the 
means  of  false  and  fraudulent  representations,  and  that  the 
defendant,  at  or  before  the  time  he  received  them  from  M., 
had  notice  of  the  manner  in  which  M.  had  obtained  them  from 
the  plaintiff,  or  that  defendant  received  them  from  M.  witliout 
any  valuable  consideration  ;  provided,  the  jury  believe,  from 
the  evidence,  that  M.  purchased  the  goods  from  the  plaiotiflf 
and  afterwards  transferred  them  to  the  defendant. 

The  court  instructs  you,  tliat  where  ]iersonal  property  is 
sold,  and  no  time  of  payment  is  fixed  by  the  contract,  then  the 
law  will  imply  that  payment  was  to  be  made  before  delivery, 
and  before  tlie  title  would  vest  in  the  imrchaser;  but  when  a 
purchaser  acquires  possession  of  projierty  before  payment,  by 
fraudulent  means,  and  sells  it  to  a  hona  fide  purchaser,  with- 
out notice,  for  a  valuable  consideration,  before  the  lirst  sale  it 
avoided  or  the  property  reclaimed,  then  the  Ijona  fide  pur 
chaser  will  hold  the  pro]3erty  as  against  the  original  owner. 

§  30.  Transferred  in  Payment  of  Debt. — That  where  a  person 
purchases  and  obtains  the  possession  of  goods  by  fraudulent 
]'ei;retentations,  and  then  sells  and  delivers  them  to  his  cred- 
itor, in  ]:ayment  of  a  pre-existing  debt,  and  the  creditor  accepts 
tliem  }):)na  fide  and  without  any  notice  of  the  fraud  of  his 
vendor,  such  creditor  is  a  purchaser  for  a  valuable  considera- 
tion, and  in  law  will  bo  protected  as  such  against  any  claim  of 
the  original  owner,  to  the  same  extent  as  if  lieliad  paid  a  new 
consideration  for  the  goods,  at  the  time  he  purchased  them. 

You  are  further  instructed,  that  if  you  believe,  from  the 
evidence,  that  M.  purchased  tlie  goods  from  the  plaintiff,  on 
credit,  by  means  of  the  alleged  fraud,  and  that  the  defendant, 
in  good  faith,  received  the  goods  from  M.  in  payment  or  part 


21-1  FKAUDS,  FALSP:    KEl'KESENTATIOKS,  ETC. 

payment  of  a  pre-existing  debt,  tlien,  to  entitle  tlie  plaintiff  to 
a  verdict  for  the  guods  as  against  the  defendant,  you  must  fur- 
ther believe,  from  the  evidence,  that  the  defendant,  when  he 
received  the  goods,  had  notice  that  M.  obtained  them  by  means 
of  the  fraud  alleged. 

If  you  believe,  from  the  evidence,  that  the  defendant  bought 
the  goods  in  controversy  from  M.  in  good  faith,  in  payment, 
or  in  part  payment,  of  a  debt  which  M.  owed  defendant,  and 
without  any  knowledge  or  notice  of  the  means  by  which  M. 
obtained  them  from  the  plaintiff,  then,  on  the  question  of  own- 
ership of  the  goods,  you  should  find  for  the  defendant,  even 
though  you  should  further  find,  from  the  evidence,  that  M. 
had  obtained  the  goods  from  the  plaintiff  by  means  of  fahe 
and  fraudulent  representitions,  as  alleged.  Butters  vs.  Ilaugh- 
wout,  42  111.,  18.  {On  this  point  the  decisions  in  different 
states  are  not  uniform.) 

§  31.  Attaching  or  Execution  Creditor,— The  court  instructs 
the  jury,  as  a  matter  of  law,  that  where  a  party  sells  goods 
and  delivers  them,  under  circumstances  which  would  authorize 
him  to  rescind  the  sale  as  against  the  purchaser,  as  explained 
in  these  instructions,  he  will  have  the  same  right,  as  against 
an  attaching  or  execution  creditor  of  the  purchaser.  Schwei- 
zer  vs.  Tracy ^  76  111.,  345. 

§  32.  Purchaser  Must  Exercise  Reasonable  Caution. — A  'bona 
fide  purchaser  from  the  fraudulent  vendee  of  personal  proj^erty, 
before  the  defrauded  vendor  has  avoided  his  contract  of  sale, 
will  get  a  good  title  to  the  property. 

You  are  instructed,  that  the  law  imposes  upon  one  purchas- 
ing personal  property,  that  degree  of  caution  and  diligence  in 
ascertaining  the  title  of  his  vendor,  which  ordinarily  prudent 
business  men  usually  exercise  under  like  circumstances,  and  it 
charges  him  with  constructive  notice  of  such  facts  only,  as  by 
the  exercise  of  such  caution  and  diligence  he  would  probably 
have  discovered.     Cochran  vs.  Stewart^  21  Minn.,  435. 

Ton  are  instructed,  that  every  false  affirmation  does  not 
amount  to  a  fraud.  If,  by  an  ordinary  degree  of  caution,  the 
party  comi)laining  could  have  ascertained  the  falsity  of  the 
representations  complained  of,  then  such  party  is  not  entitled 


FRAUDS;  FALSE  KEPKESENTATIONS,  ETC.  245 

to  a  verdict;  and  in  this  case,  to  entitle  the  plaintiff  to  a  ver- 
dict, jou  must  believe,  from  the  evidence,  not  only  that  the 
representations  complained  of  were  made,  but  also  that  they 
were  made  under  circumstances  calculated  to  deceive  a  person 
acting  with  reasonable  and  ordinary  prudence  and  caution; 
and  in  determining  this  question,  the  jury  should  consider  all 
the  circumstances  under  which  the  alleged  representations  ap- 
pear, from  the  evidence,  to  have  been  made,  and  whether,  un- 
der the  circumstances,  the  representations  were  such  as  a 
person  of  common  and  ordinary  prudence  would  or  should 
have  relied  upon  or  such  as  would  be  likely  to  mislead  such  a 
person.     Eames  vs.  31organ,  37  111.,  200. 

§  33.  Only  Boimd  to  Exercise  Reasonable  Caution. — The  jury 
are  instructed,  that  although  a  party  to  a  contract  is  bound  to 
exercise  reasonable  care  and  caution  to  prevent  being  de- 
frauded, still,  if  the  party  with  whom  he  is  dealing  makes  use 
of  such  false  and  fraudulent  statements,  representations  and 
acts,  with  respect  to  a  material  inducement  to  the  contract,  as 
are  calculated  to  mislead  a  person  acting  with  common  pru- 
dence and  reasonable  discretion,  and  such  person  is  thereby 
induced  to  enter  into  a  contract,  or  to.  part  with  propert}^  which 
he  would  not  otherwise  have  done,  then  the  party  making  use 
of  such  false  and  fraudulent  statements,  representations  or 
acts,  cannot  be  heard  to  say  that  the  person  so  deceived  and 
misled  did  not  make  such  inquiries  as  might  have  resulted  in 
a  discovery  of  the  falsity  of  the  representations. 


CHAPTEE  XXIII. 

HIGHWAYS- 


Sec.    1.  How  created. 

2.  Presumption  from  laying  out  and  working  highway. 

3.  Evidence  of  highway,  how  proved. 

4.  Condemnation,  how  proved — Actual  location  must  prevail. 

5.  Monuments  control  courses  and  distances. 

6.  Prima  facie  evidence  of  location. 

7.  What  is  meant  by  dedication. 

8.  Dedication,  what  constitutes. 

9.  Dedication  must  be  made  by  the  owner. 

10.  No  particular  ceremony  required. 

11.  No  specific  time  required. 

12.  Dedication  must  be  accepted. 

13.  Owner  must  intend  to  dedicate. 

14.  Dedication  binding  on  the  owner  and  all  claiming  under  him. 

15.  Dedication  by  sale  of  lots  bounded  on  streets. 

16.  Prescription — Twenty  years'  user. 

17.  Prescription — Travel  must  be  confined  to  a  particular  route. 

§  1.  How  Created. — The  court  instructs  the  Jury,  that  a  pub- 
lic highway  may  be  acquired  by  condemnation  under  the  stat- 
ute by  grant  from  the  owner — and  after  {tvnenty)  years'  use  by 
the  public,  a  grant  will  be  presumed — and  by  dedication  to  and 
acceptance  of  the  highway  by  the  ])ublic;  the  acceptance  of 
the  highway  may  be  inferred  from  travel  by  the  ])ublic,  or 
from  repairs  made  thereon  by  the  proper  public  authorities. 
Washburn  on  Easements,  125;   Grube  vs.  Nichols^  36  111.,  96. 

You  are  instructed,  that  the  plaintiff  is  at  liberty  to  rely 
upon  establishing  the  existence  of  the  road  by  proving  either 
a  condemnation  under  the  statute,  (twentij)  years'  continuous 
adverse  use  by  the  public,  or  dedication  by  the  owner.  And 
if  you  believe,  from  the  evidence,  that  the  plaintiff  has  proved 
the  establishment  of  the  road  in  controversy  by  either  one  of 
tliese  three  methods,  as  explained  in  these  instructions,  that  is 
sufficient  upon  the  question  of  the  existence  of  the  road. 
Summers  vs.  The  State,  51  Tnd.,  201. 

(246) 


HIGHWAYS.  247 

§  2.     Prpsumption   fi'om  Laying  Out  and  Working  Highwaj'. — 

If  the  jury  believe,  from  the  evidence,  that  a  public  road  was 
laid  out  over  the  place  in  question;  that  it  was  used  and 
traveled  by  the  public,  and  that  it  was  recug-nized  and  kept  in 
repair  as  such  by  the  public  authorities  for  a  period  of  {five) 
years,  or  more,  before  the  commencement  of  this  suit,  then 
these  facts  furnish  a  presumption,  liable  to  be  rebutted  by 
proof,  that  such  road  is  a  public  highway.  Daniels  vs.  The 
People,  21  111.,  439. 

§  3.  Existence  of  Highway,  How  Proved. — The  jury  are 
further  instructed,  that  the  plaintiff  is  not  bound  to  rely  on 
the  record  of  the  condemnation  proceeding  alone  to  establish 
the  existence  of  the  road  in  question ;  it  is  sufficient  if  the 
jury  believe,  from  the  evidence,  and  under  the  instruction  of 
the  court,  that  there  was  at  the  time  in  question  a  legal 
highway,  as  explained  in  these  instructions,  at  the  point  in 
question. 

A  public  highway  may  exist,  one  part  by  condemnation 
under  the  statute,  another  by  prescrii)tion,  which  means 
(twent>j)  years',  or  more,  continuous,  adverse  use,  and  still 
another  part  of  the  road  may  exist  by  dedication. 

§  4.  Condemnation,  How  Proved — Actual  Location  Must  Prevail. 

— The  jury  are  instructed,  that  the  plat  and  survey  of  a  road 
made  by  tliM  dii'ection  of  the  commissioners  of  highways  is 
prima  facie  evidence  of  the  location  of  the  road,  but  it  is 
not  conchisive.  If  the  jury  believe,  from  the  evidence,  that 
the  commissioners  eventually  staked,  laid  out  and  opened  the 
road  different  from  the  plat  and  survey,  then  the  actual  loca- 
tion must  be  proved. 

§  5.  Monuments  Control  Courses  and  Distances. — The  jury 
are  instructed,  that  the  rule  of  law  is,  if  there  is  any  discrep- 
ancy between  the  courses  and  distances,  as  given  in  the  order 
of  the  commissioners,  and  the  monuments  mentioned  in  the 
survey  of  the  road,  or  actually  placed  on  the  ground,  then  the 
monuments  must  prevail.  Daniels  vs.  The  People,  21  111., 
439. 

The  monuments  and  lines   actually  run  by  the  surveyor  in 


248  HIGHWAYS. 

snrvejing  the  road,  and  the  staking  and  laying  ont  the  road 
on  the  ground,  must  always  prevail  in  determining  the  location 
of  a  ro:id.  The  notes  of  survey,  and  tlie  plat  returned  by  the 
surveyor  are  hut  matters  of  descri]ition,  which  serve  to  assist 
in  determining  the  place  where  the  road  is  laid,  but  they  are 
not  conchisive. 

The  actual  surveying,  staking,  laying  out  and  viewing  the 
line  of  the  road  upon  the  ground  where  it  is  laid  constitutes 
the  location  of  the  road;  provided  the  road  is  actually  opened 
on  that  line. 

,  If  you  believe,  from  the  evidence,  that  the  surveyor  actually 
surveyed,  laid  out  and  located  the  road  on  the  ground,  on  what 
is  known  as  the  (north)  line,  under  the  direction  of  the  hii^h- 
way  commissioners,  then  that  would  be  the  true  line,  although 
the  survey  and  plat  called  for  a  different  line.  Illner  vs.  The 
People,  34  111.,  29T. 

§  6.  Prima  Facie  Evitlence  of  Location. — The  court  instructs 
the  jury,  that  the  petition,  report  of  the  commissioners,  the 
survey  and  ])lat  of  the  surveyor  in  locating  the  road,  at  the 
time  the  road  is  alleged  to  have  been  laid  out,  are  required, 
by  law,  to  ba  filed  in  the  office  of  the  town  clerk,  and  Avlien 
they  are  so  filed  they  become  a  part  of  the  public  records  for 
the  use  of  the  public.  And  {the  copies  of)  all  such  ];a])er8  as 
have  been  used  in  evidence  in  this  case  are  prima  facie  evi- 
dence of  the  facts  stated  in  them  respectively.  II'nier\&.  The 
People,  34  111.,  297. 

§  7.  What  is  IMeant  by  Derlication. — By  dedication  is  meant 
a  giving  and  granting  of  a  right;  and  before  the  jury  can  tind 
that  there  is  a  valid  road  by  dedication,  at  the  point  in  con- 
troversy, they  must  believe,  from  the  evidence,  that  the  owner 
of  the  land  intended  to  give,  and  did  give,  to  the  ])ublic  a  right 
of  way  over  the  land,  and  that  the  public  accepted  the  gift. 
Angell  on  Highways,  §  132. 

§  8.  Dedication — AMiat  Constitutes. — The  jury  are  instructed, 
that  to  constitute  a  dedication  of  land  for  a  highway,  as  regards 
the  general  jmblic,  the  owner  of  the  fee  must  give  the  right 
of  way  to  the  public,  and  it  must  be  accepted  and  appro pri- 


HIGHWAYS.  249 

ated  to  tliat  use  by  travel,  or  a  recognition'  of  it  as  a  public 
highway  by  repairs,  or  otlierwise,  by  the  pro|)er  public  author- 
ities. To  show  a  dedication,  the  acts  of  both  the  dunur  and 
the  public  authorities,  in  these  resjiects,  must  concur.  State 
vs.  Tucker,  36  la.,  485;  ^ifiJc  vs.  The  Town  of  Havana^  88 
111.,  208;   Tupper  vs.  Hudson,  46  Wis.,  646. 

§  9.  Dedication  Must  be  Made  by  the  Owner. — The  Jury  are  in- 
structed, tliat  a  primary  condition  of  every  valid  dedication  of 
land  to  public  use  is  that  it  should  be  made  b}'-  the  owner  of 
the  fee.  No  one  but  the  owner  in  fee  can  dedicate  land  to 
public  use.  Baugan  vs.  Mann^  59  111.,  492;  Porter  vs.  Stone 
51  la.,  373. 

§  10.  No  Particular  Ceremony  Required. — That  no  particular 
form  or  ceremony  is  necessary  in  the  dedication  of  laud  for  a 
public  highway;  all  that  is  required  is  tliat  the  owner  shall,  in 
some  manner,  manifest  an  intention  to  dedicate  it,  and  that  the 
public  shall  accept  the  dedication.  Morgan  vs.  Railroad  Co., 
96  U.  S.,  716;  Skrainka  vs.  Allen,  2  Mo.  App.,  387. 

§  11.  No  Specific  Time  Required. — The  jury  are  instructed, 
tliat  no  specific  length  of  possession  by  the  public  is  necessary 
to  constitute  a  dedication  of  ground  as  a  street  or  highway. 
It  is  only  necessary  that  the  owner  should  manifest  an  inten- 
tion to  dedicate  it  for  that  purpose  either  by  writing,  by  dec- 
larations or  by  acts,  and  that  the  public  should  accept  the 
dedication  as  made.  City  Chicago  vs.  Wright,  69  111.,  318; 
Gentleman  vs.  Soule,  32  111.,  271. 

To  efi'ect  a  dedication  tliere  must  be  an  intention  so  to  do, 
and  such  intention  may  be  manifested  by  acts  and  accompany- 
ing declarations.  No  particular  time  is  necessary  to  consti- 
tute a  dedication;  it  may  take  place  immediately,  if  the  owner 
of  the  property  intends  it  shall  do  so,  and  the  public  accepts  it. 
Mees  vs.  City  Chicago,  38  111.,  322. 

§  12.  Dedication  Must  be  Accepted. — The  jury  are  instructed, 
that  a  dedication  of  land  to  public  use  may  be  made  by  verbal 
declarations,  if  accompanied  by  such  acts  as  are  necessary  for 
that  purpose;  but  to  make  a  valid  dedication  to  the  public,  an 


250  HIGHWAYS. 

intention  to  appropriate  the  right  to  the  general  use  of  the 
public  must  exist;  and  in  order  to  establish  a  dedication  of 
land  to  the  public  for  a  street  or  highway,  there  must  not 
on] J  be  an  act  of  dedication  of  the  land  by  the  owner  for  that 
purpose,  but  there  must  be  some  proof  of  its  acceptance  as 
such  by  the  public,  acting  through  the  proper  authorities. 
Kennedy  vs.  LeVan,  23  Minn.,  513;  III.  Ins.  Co.  vs.  Little- 
field,  67  111.,  368;  Mansur  vs.  Baughey,  60  Ind.,  364;  Field 
vs.  Village,  etc.,  32  ILlch.,  279. 

§  13.  Owner  Must  Intend  to  Dedicate. — The  jury  are  instructed, 
that  there  can  be  no  valid  dedication  of  laud  to  public  use 
without  an  intention,  on  the  part  of  the  owner,  to  so  dedicate; 
and  althongh  the  jury  may  believe,  from  the  evidence,  that 
the  land  at  the  point  in  question  had  been  used  by  the  public 
as  a  highway  with  the  knowledge  and  consent  of  the  owner, 

for years  before,  etc.,  still,  this  alone  is  not  sufficient  to 

establish  the  existence  of  a  highway  by  dedication;  it  nmst 
further  api)ear,  from  a  preponderance  of  the  evidence,  that 
the  plaintiff  intended  to  dedicate  it  to  the  use  of  the  public  as 
a  highway.  Henderson  vs.  Alloway,  3  Tenu.  Ch.,  688;  Man- 
sur vs.  State,  60  Ind.,  357. 

Although  it  is  necessary,  in  order  to  show  a  dedication  of 
land  to  public  use,  that  the  owner  intended  tlius  to  dedicate  it, 
still,  this  intention  may  be  manifested  by  acts  or  words,  or 
partly  by  both,  and  if  the  jury,  after  considering  all  the  evi- 
dence in  the  case,  believe  therefrom,  that  before,  etc.,  that  the 
plaintiff  intended  to,  and  did  dedicate  the  land  in  question  to 
])ublic  use,  and  with  that  intention,  gave  the  public  the  right 
to  travel  thereon  and  to  use  the  same  as  a  highway,  and  that 
the  public  accepted  the  gift  by  using  and  working  the  road, 
then  this  is  evidence  from  which  the  jury  may  infer  that  there 
was  a  dedication  as  claimed.  White  vs.  jSmith,  37  Mich.,  291; 
Kennedy  vs.  Le  Van,  23  Minn.,  513. 

§  14.  Dedication  Binding  on  the  Owner,  and  all  Claiming  nnder 
Him, — The  jury  are  instructed,  as  a  matter  of  laAv,  that  a  valid 
dedication,  when  once  made  and  accepted,  is  binding  not  only 
on  the  person  making  it.  but  also  ujjou  all  persons  claiming 
under  him  by  deed  or  otherwise.  Ilees  vs.  City  of  Chicago, 
38  111.,  322. 


HIGHWAYS.  251 

If  tlie  jury  believe,  from  the  evidence,  that  A.  B.,  while  he 
was  the  owner  of  tlie  land  at  the  point  in  question,  dedicated 
it  to  public  use  as  a  hi_<^hway,  as  explained  in  these  instruc- 
tions, and  that  the  public  accepted  the  dedication,  then  the 
portion  so  dedicated  should  be  deemed  to  be  a  public  high- 
way. Town  of  Havana  vs.  Biggs,  58  111.,  483;  Bartlett  vs. 
Bangor,  67  Me.,  4.G0;  Summers  vs.  State^  51  lud.,  201. 

§  15.  Dedication  by  Sale  of  Lots  Bounded  on  Streets. — That 
when  the  owner  of  land,  within  or  near  a  city  or  village,  lays 
it  off  into  lots,  blocks  and  streets,  and  makes  a  ])lat  of  the  same, 
marking  thereon  the  streets  and  lots,  and  then  sells  one  or 
more  of  the  lots,  by  reference  to  the  plan  or  plat,  he  thereby 
annexes  to  each  lot  sold  a  right  of  way  in  the  street,  which 
neither  he  nor  his  successors  in  the  title  can  interrui)t  or  take 
away.  Bartlett  vs.  Bangor,  07  Me.,  460;  Fisher  et  al.  vs. 
Beard,  32  la.,  346;    Waugh  vs.  Leech,  28  111.,  488. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  if  the 
owner  of  a  piece  of  land  lays  it  out  into  lots  and  blocks,  wiLh 
streets  and  alleys,  and  then  sells  off  a  lot,  bounding  the  lot  by 
one  of  the  designated  streets,  then  the  purchaser  of  the  lot 
will  acquire  a  right  to  have  the  street  remain  open  for  street 
purposes,  whether  it  is  so  mentioned  in  tlie  deed  or  not,  or 
whether  the  street  be  accepted  by  the  public  authorities  or 
not.  ClarJc  vs.  Elizabeth,  40  N.  J.  L.,  172;  Denon  vs.  Clem- 
ents, 3  Col.,  472;  Deimtt  vs.  Ithaca,  15  Hor.  (N.  T.),  568; 
Eastland  vs.  Fogo,  58  Wis.,  274. 

§  16.  Prescription — (Twenty)  Years'  User. — If  the  jury  be- 
lieve, from  the  evidence,  that  a  public  road  has  been  used  by 
the  public  over  the  place  in  question,  for  {twenty)  years  or 
more,  without  interruption,  and  that  the  owners  of  the  land 
have  acquiesced  therein  during  all  that  time,  then  the  law 
presumes  a  grant  or  a  dedication  of  the  ground  uix)u  M'liich 
the  road  runs,  to  the  use  of  the  public,  for  a  common  highway. 
State  vs.  Green,  41  la.,  693. 

The  court  instructs  you,  that  a  peaceable,  continuous  and 
uninterrupted  use  of  a  piece  of  ground,  as  a  highway,  by  the 
public  for  {tioenty)  years,  or  more,  creates  what  is  called  a  pre- 
scriptive right  to  use  the  road  as  such;  and  this  right  con- 


252  HIGHWAYS. 

timics  tin  it  is  clearly  and  unmistakably  abandoned  by  the 
public.  A  partial  or  transient  non-user  of  a  road,  by  reason  of 
the  travel  being  diverted  to  other  roads,  is  not  sufficient  to 
establish  an  abandonment  of  such  road.  Toion  of  Leioistown 
vs.  Proctor,  27  111.,  414;  Dexter  vs.  2^ree,  6  N.  E.  Eep.,  506. 

§  17.  Prescription — Ti-avel  Must  be  Confined  to  a  Particular 
Route. — The  jury  are  instructed,  that  the  public  cannot  acquire 
a  right  by  prescription;  that  is,  by  a  user  for  {twenty)  years, 
to  travel  over  a  tract  of  land  generally.  The  travel  and  the 
right  of  way  must  be  contined  to  a  specific  line  or  way,  that 
could  pro])er]y  be  called  a  road.  That  travel  may  slightly 
deviate  from  the  thread  of  a  road  to  avoid  an  obstruction,  and 
still  not  change  the  road  itself.  Kelsey  vs.  Furinan,  36  la., 
614;  Davis  vs.  Clinton  City  Council,  10  K  W.  Eep.,  768. 

You  are  further  instructed,  that  if  various  and  distinct  lines 
of  travel  have  been  used  at  different  times  across  a  piece  of 
land,  the  time  during  which  the  different  lines  have  been  used 
cinnot  be  so  computed  as  to  make  up  the  requisite  {tweyity) 
years  to  establish  a  prescriptive  right  of  way  to  any  single  line 
of  road.     Gentleman  vs.  Soule,  32  111.,  271. 

If  you  believe,  from  the  evidence,  that  the  public  acquiesced 
in  the  placing  of  the  obstruction  complained  of  in  the  road  in 
question,  by  the  defendant,  and  that  tlie  public  accepted  the 
road  spoken  of  by  the 'witnesses  as  ("  ^/i<e  noi^th  road''^')  in  lieu 
of  the  road  in  question,  and  used  the  said  substituted  road  for 
a  period  of  {five)  years  before  the  commencement  of  this  suit, 
then  the  public  have  waived  their  right  in  the  defendant's 
land  at  the  point  of  the  obstruction,  and  the  plaintiff  is  not 
entitled  to  recover  in  this  suit.     Gruhe  vs.  N'ichols,  36  111.,  92. 


CHAPTER  XXIV. 

INSUKAXCE. 


Sec.     1.  Duty  of  court  to  interpret  policy — Suit  to  be  brought  within 
twelve  mon'hs. 

2.  Non-payment  of  premium. 

3.  Estopped  by  unilorni  course  of  business. 

4.  Application  is  made  a  warranty. 

5.  Warranty  as  to  amount  of  incumbrances. 

6.  Fraud,  knowledge  of  agent,  knowledge  of  company. 

7.  Condition  as  to  other  insurance. 

8.  Other  insurance  known  to  the  defendant. 

9.  Representations  as  to  incendiarism. 

10.  Warranty  as  to  title. 

11.  Non-compliance  with  conditions. 

12.  Furnishing  proofs  of  loss. 

13.  Waiving  proofs  of  loss. 

14.  Condition  to  render  account  of  loss  forthwith. 

15.  When  agent  cannot  waive  proofs  of  loss. 

16.  Premises  becoming  unoccupied. 

17.  Premises  temporarily  vacant. 

18.  False  swearing  in  proofs  of  loss. 

§  1.  Dutyof  the  Court  to  Interpret  the  Policy — Suit  to  beBroxig-ht 
within  Twelve  Months. — The  jury  are  instructed  tliat  it  is  the 
duty  of  the  court  to  interpret  and  give  the  raeaning  of  the  con- 
tract or  policy  offered  in  evidence  in  this  case,  and  the  court 
instructs  the  jury  that  by  the  terms  of  the  policy,  the  plaintiff 
cannot  sustain  this  suit,  unless  it  was  commenced  within  twelve 
months  after  the  loss,  if  any  occurred,  or  unless  the  defendant 
has  waived  that  provision  of  the  policy,and  if  the  jury  believe, 
from  the  evidence,  that  the  loss  in  question  occurred  on,  etc., 
then  the  jury  should  find  the  issues  for  the  defendant,  imless 
the  jury  further  believe,  from  the  evidence,  that  tlie  defendant 
jiad,  in  some  manner,  waived  the  necessity  of  commencing  suit 
within  twelve  months  after  the  loss,  as  explained  in  these 
instructions  on  that  point.  Riddlesbarger  vs.  Hartford  Ins- 
Co.,  7  Wall.,  386;  Portage  Co.  Mutual  Ins.  Co.  vs.  West,  6 
Ohio  St.,  699;  Keim  vs.  Hoine  Mutual  Ins.  Co.,  42  Mo.,  38; 

(253) 


254  IXSUKANCE. 

Peoria  Marine  F.  Ins.    Co.  vs.  Whitehill.  25  111.,  466;  Mer- 
chants Mutual  Ins.  Co.  vs.  La  Croix,  35  Tex.,  249. 

§  2.  Non-Payment  of  Preminm. — If  the  jury  believe,  from 
tlie  evidence,  that  the  preminm  mentioned  in  the  policy  had 
not  been  paid  at  the  time  of  the  lire,  then,  nnder  the  plead- 
ings in  this  case,  to  warrant  a  finding  for  tlie  plaintiff,  the 
jury  must  believe  from  the  evidence  that  sucli  payment  was 
either  waived  by  the  defendant  or  that  the  defendant  agreed 
with  the  plaintiff  to  wait  for  such  payment  until  some  definite 
period  of  time  subsequent  to  the  happening  of  the  loss — and, 
in  arriving  at  a  conclusion  upon  these  questions,  the  jury  have 
a  right  to  consider  the  conduct  of  the  j^arties  in  refei-ence 
thereto,  so  far  as  it  appears  in  evidence,  together  with  all  the 
other  evidence  in  the  case.  Southern  Life  Ins.  C >.  vs.  BooJcer, 
9  Heisk.,  606;  Mich.  Mutual  L.  Ins.  Co.  vs.  Powers,  42  Mich., 
19;  Beadle  vs.  Chenango  County  Mutual  Ins.  Co.,  3  Hill, 
161;  Ayj'e  vs.  I^ev)  England  Mutual  L.  Ins.  Co.,  109  Mass., 
430;    liovxird  vs.  Continental  Ins.  Co.,  48  Cal.,  229. 

The  policy  of  insurance  in  this  case  contains  a  condition 
that  the  company  should  not  be  liable  for  any  loss  occurring 
when  the  premium  note  is  wholly  or  iti  jxart  past  due  and  un- 
paid; and  if  you  believe,  from  the  evidence,  that  when  the 
loss  occurred,  there  was  any  portion  of  the  premium  note  due 
and  unpaid,  then  the  defendant  is  not  liable  for  such  loss,  un- 
less you  further  b-ilieve,  from  the  evidence,  that  the  defend- 
ant had  in  some  manner  waived  or  excused  the  prompt 
payment  of  such  premium  note,  as  explained  in  these  instruc- 
tions. Garlick  vs.  Miss.  Valley  Ins.  Co.,  44  la.,  553;  Sha- 
key  vs.  HaioJceye  Ins.  Co.,  44  la.,  540;  Wheeler  vs.  Conn. 
Mutual  Life,  16  Hun,  317;  Patch  vs.  Phcenix  Mutual  Ins. 
Co.,  44  Yt.,  481;  Sullivan  vs.  Cotton  States  L.  Ins.  Co.,  43 
Ga.,  423. 

You  are  instructed,  that  although  you  may  believe,  from 
the  evidence,  that  the  witness  A.  B.  agreed  with  the  plaintiff 
to  extend  the  time  of  payment  of  the  premium  mentioned  in 
the  policy,  until,  etc.,  still,  in  order  to  make  such  agreement 
binding  upon  defendant,  you  must  further  believe,  from  the 
evidence,  that  such  an  agreement  was  ratified  by  the  insurance 
Company,  or  that  the  said  A.  B.  was  either  authorized  by  the 


INSUKANCE.  255 

com]-)any  to  make  the  contract  or  that  the  defendant  had 
knowingly  permitted  him  to  act  in  such  a  way  as  to  justify 
the  plaintiff  in  reasonably  believing  that  he  had  such  author- 

ity. 

§  3.  Estopped  by  Uniform  Course  of  Business. — The  court 
instructs  you,  as  a  matter  of  law,  that  a  local  agent  of  an  in- 
surance company  may  be  authorized  by  the  course  of  business 
to  waive  the  conditions  and  stipulations  in  the  policy,  and  the 
company  maj''  be  bound  thereby,  notwithstanding  the  policy 
says  that  he  may  not  do  so;  and  if  the  jury  believe,  from 
the  evidence,  tliat  for  a  number  of  years  it  had  been  the  uni- 
form practice  of  the  defendant  to  give  notice  of  the  time 
when  the  premium  would  fall  due,  and  to  collect  the  same 
through  a  local  agent  residing  in  the  neighborhood,  then  good 
faith  required  that  this  mode  of  collection  should  not  be  dis- 
continued and  payment  required  at  the  home  office,  under 
penalty  of  a  forfeiture,  without  notice  to  the  plaintiff.  Union 
Cent.  Life  Ins.  Co.  vs.  Pother,  33  Ohio  St.,  459;  Mound  City 
Ins.  Co.  vs.  Tioining.  19  Kans.,  349;  Ga.  Ins.  Co.  vs.  Ki7iner, 
28  Graft.,  88;  McCmw  vs.  Old  JS'.  St.  Ins.  Co.,  7§  K  C,  149. 

§  4.  Application  is  Made  a  Warranty. — By  the  terms  of  the 
policy  introduced  in  evidence,  the  written  application  is  made 
a  pai't  of  the  contract  of  insurance;  the  effect  of  this  clause  is  to 
make  the  application  part  of  the  policy  as  effectually  as  if  it 
was  embodied  in  the  policy  itself. 

One  of  the  conditions  in  the  policy  is  that  any  false  repre- 
sentation made  by  the  assured,  of  the  condition  of  the  prop- 
erty, or  of  its  occu}  ancy,  or  of  any  fact  material  to  the  risk, 
will  avoid  the  policy;  and  so  the  court  instructs  you,  as  a  mat- 
ter of  law,  that  any  matter  material  to  the  risk,  if  contained 
in  the  application,  and  if  it  was  untrue,  in  fact,  will  avoid  the 
policy,  whether  it  was  made  intentionally  or  not  (unless  you 
find,  from  the  evidence,  that  the  company  is  estopped  by  the 
conduct  of  its  agent  from  setting  up  such  matters  in  defense 
as  explained  in  these  instructions).  Jennings  vs.  Chenango 
County  Mut.  Ins.  Co.,  2  Denio,  75. 

§  5.     Warranty  as  to  Amount  of  Incumbrance. — The  jury  are 


256  INSCEANCE. 

instructed,  that  amono;  tlie  questions  in  the  apph"cations  of 
insurance,  which  the  insured  is  required  to  answer,  was  this: 
Istlie  property  incumbered,  if  so,  to  what  amount?  To  which 
the  plaintiff  answered:  Yes,  mortgaged,  §1,000.  Now,  tlie 
court  instructs  the  jury,  as  a  matter  of  law,  that  the  amount 
of  incumbrance  on  the  property  insured  at  that  time  was 
material  to  the  risk,  and  if  you  believe,  from  the  evidence, 
that  the  property  was  then  incumbered  to  the  amount  of, 
etc.,  then  this  would  be  such  a  false  representation  as  would 
avoid  the  policy,  and  in  such  case  it  would  make  no  diiference 
whether  the  untrue  answer  was  made  by  accident,  mistake  or 
design.  Unless  the  jury  further  believe,  from  the  evidence, 
that  (here  set  out  the  matter  claimed  as  an  estoppel).  Byers 
Ys.  Lis.  Co.,  35  Ohio,  St.,  go;. 

Ton  are  instructed  that  by  the  terms  of  the  policy  intro- 
duced in  evidence,  the  insured  warrants  the  truth  of  all  the 
material  statements  contained  in  his  application  for  insurance, 
and  among  the  matters  so  warranted  by  the  plaintiff  is  the 
statement  tliat  the  incumbrances  on  the  i:roperty  insured  only 
amounted  at  that  time  to  the  sum  of  (81,000).  This  was  a 
representation  of  a  then  existing  fact  respecting  the  property 
insured,  which  was  material  to  the  risk,  and  if  it  was  not  sub- 
stantially true,  this  would  render  the  policy  voi  1.  If,  there- 
fore, you  believe  from  the  evidence,  that  at  the  time  of  the 
making  of  the  said  application  there  was  other  incumbrance 
on  said  premises  over  and  above  the  said  (i?l,000)  to  the 
amount  of,  etc.,  and  that  this  was  not  called  to  the  attention  of 
the  agent  who  took  the  application  and  that  he  had  no  notice 
or  knowledge  of  such  other  incumbrance,  this  would  render 
the  policy  void,  and  the  plaintiff  cannjt  recover  in  this  suit. 
Schumitsch  vs.  Ain.  Ins.  Co.,  48  "Wis.,  26;  liyan  vs.  Sjjring- 
field  Ins.  Co.,  46  Wis.,  671. 

Although  you  may  find,  from  the  evidence,  that  there  was 
other  incumbrance  on  the  property  over  and  above  the  ($1,000) 
mentioned  in  the  application  for  insurance,  still,  if  you  further 
believe,  from  the  evidence,  that  all  the  facts  and  circumstances 
connected  with  such  other  incumbrance  were  called  to  the 
attention  of  the  agent  who  took  said  application,  and  that  he 
advised  the  plaintiff  that,  in  view  of  such  cii-cumstanees,  it 
would  be  unnecessary  to  mention  such  other  incumbrance, 


INSUKANCE.  257 

and  tliat  it  was  in  consequence  of  such  advice  that  such  ad(h"tion 
and  incumbrance  was  omitted  in  the  application,  then  the  de- 
fendant is  estopped  from  urging  such  omission  as  a  defense  to 
tliis  action,  and  as  to  that  question,  you  should  find  in  favor 
of  the  plaintiff.  Rockford  Lis.  Co.  vs.  Nelson^  75  111.,  548; 
Ilarrimayi  vs.  Queen^s  Ins.  Co..,  49  Wis.,  71. 

§  6.     Fraud — Knowledge  of  Agent  Knowledge  of  the  Companj'. — 

If  the  jury  believe,  from  the  evidence,  that  the  application  for 
insurance  was  filled  out  or  drawn  up  by  the  agent  of  the  defend- 
ant and  that  the  insured  honestly,  frankly  and  fully  disclosed 
to  such  agent  the  real  facts  in  regard  to.  etc.,  and  that  the  in- 
sured was  induced  to  take  out  the  policy  and  pay  the  pre. 
mium  by  the  assurances  of  such  agent  that  the  form  in  which 
the  facts  in  regard  to,  etc.,  were  stated  in  the  application  was 
the  correct  one,  then  the  defendant  is  estopped  from  claiming 
any  advantage  fr  -m  any  misstatement  in  the  said  application 
in  regard  to,  etc.,  if  the  same  has  been  proved.  Lasher  vs. 
N.  W.  National  Lis.  Co.,  55  How.  (K  Y.),  Pr.  318;  Maji^ 
hattan  F.  Lis.  Co.  vs.  Weill,  28  Gratt.,  389;  McCall  vs. 
Phmnix,  etc.,  9  W.  Ya.,  237;  Rome  Ins.  Co.  vs.  Lewis,  48 
Tex.,  622. 

If  3'-ou  believe,  from  the  evidence,  that  the  plaintiff  included 
in  the  policy  goods  not  belunging  to  him  with  intent  to  de- 
f;aud  the  insurance  company  and  purposely  concealed  wlio  was 
the  true  owner,  or  represented  tliem  to  be  his  property,  with 
intent  to  cheat  and  defraud  the  company,  then  this  would 
render  the  policy  void. 

But  if  you  believe,  from  the  evidence,  that  at  the  time  the 
application  for  insurance  was  made  he  stated  to  the  agent  who 
took  the  application  that  these  goods  were  in  his  possession 
but  that  he  was  not  the  owner  of  them,  and  that  the  agent 
then  informed  him  that  he  could  include  them  in  the  insur- 
ance as  his  goods  and  that  the  plaintiff  acted  on  this  infor- 
mation and  relied  on  this  advice,  then  the  plaintiff'  cannot  be 
said  to  have  intended  to  defraud  the  company. 

If   you  believe,    from  the  evidence,  that  at   the   time  the 

application  was  made  the    plaintiff  could  not  readily  write  or 

read    writing  and  that  the    blanks    in    the    ])rinted  forms  of 

application  were  filled  up  by  one  A.  B.  and   that  he  was  then 

17 


258  INSUKANCE. 

acting  as  the  agent  of  the  insurance  comjianj,  and  fuitlier  that 
there  Avere  false  answers  and  statements  therein,  still  if  you 
further  believe  from  the  evidence  that  such  false  answers  and 
statements  were  occasioned  by  the  cai-elessness,  mistake  or 
inadvertence  of  such  agent,  then  the  plaintiff  would  not  be 
bound  by  such  false  statements — although  the  policy  contains 
a  clause  thai  the  person  who  procures  the  insurance  should  be 
deemed  to  be  the  agent  of  the  assured,  etc.  Sj>i'agioe  vs. 
IloUand  Purchase  Ins.  Co.,  69  N.  Y.,  128. 

§  7.  Condition  as  to  Other  Insurance. — Tliat  among  the  con- 
ditions in  the  policy  sued  on,  is  one  wliich  provides:  that  if 
the  assured  should  thereafter  procure  any  other  insurance,  etc.; 
and  the  court  instructs  you,  that  if  you  lind,  from  the  evidence, 
that  the  plaintiff,  after  receiving  the  policy  from  the  defend- 
ant companj',  and  before  the  loss  in  question  occui-red,  obtained 
other  insurance  upon  the  property,  which  had  not  expired  at 
the  time  of  the  fire,  and  that  no  notice  thereof  was  given  to  the 
defendant,  its  agents  or  officers,  before  the  fire,  or  to  which  the 
company  or  its  agents  did  not  consent,  then  this  would  render 
the  plaintiff's  policy  void,  and  he  cannot  recover  in  this  sa  t. 
Ain.  Ins.  Co.  \s.Gallati?i,  48  Wis.,  36;  Mellen  \%.  Hamilton 
Fire  Ins.  Co..  17  K  T.,  609;  Burt  vs.  Peoples  Mutual  F.  Ins. 
Co.,  2  Gray,  397;  Shurtliff  y&.  Phosnix  Lis.  Co.,  57  Me.,  137; 
Keiv  Yorlc  Cent.  Ins.  Co.  vs.  Watson,  23  Midi.,  486;  LocJcey 
vs.  Georgia  Home  Ins.  Co.,  42  Ga.,  456;  Jewett  vs.  Home  Ins. 
Co.,  29  la.,  562. 

Although  you  may  believe,  from  the  evidence,  that  after 
receiving  the  policy  from  defendant  the  plaintiff  did  procure 
other  insurance  on  the  property  in  question  (without  having 
the  consent  of  the  secretary  written  on  the  policy),  still,  if  you 
further  believe,  from  the  evidence,  under  the  instructions  of 
the  court,  that  A.  B.  was  at  the  time  the  general  local  agent  at 
S.,  and  had  autlioi-ity  to  receive  and  take  applications  for  in- 
surance by  defendants,  and  to  make  contracts  for  the  company 
in  relation  thereto — and  further,  that  while  the  said  A.  B.  was 
so  acting  as  agent,  tlie  plaintiff  notified  him  of  his  intention  to 
take  su'-h  additional  insurance,  and  afterwards  told  him  he  had 
done  so,  and  that  neither  the  said  agent,  nor  any  one  else  on 
behalf  of  defendant,  notified  the   plaintiflE  that  such  additional 


INSUKANCE. 


259 


insiu-ancc,  without  being  indorsed  on  the  policy  (or  consented 
to  in  writing  by  the  secretary),  would  render  or  had  rendered 
the  policy  void,  then  the  defendant  must  be  deemed  to  have 
waived  the  condition  in  the  policy  regarding  such  additional 
insurance,  and  the  plaintiff's  right  of  recovery  will  not  be 
affected  thereby.  J.m.  Ins.  Co.  vs.  Gallatin,  48  Wis.,  36; 
Geib  vs.  International  Ins.  Co.,  1  Dill.  Cir.  Ct.,  443;  Goodall 
vs.  New  England  Mutual  F.  Ins.  Co.,  25  N.  H.,  109;  Ins.  Co. 
of  N.  Am.  vs.  McDowell,  50  111.,  120;  Schenck  vs.  Mercer 
Count ij  Mutual  Ins.  Co.,  24  K  J.,  447;  Ilaj/wardvs.  K  Ins. 
Co.,  52  Mo.,  181.  Contra:  Worcester  Bank  vs.  Eartford  F. 
Ins.  Co.,  11  Gush.,  265. 

If  you  believe,  from  the  evidence,  that  A.  B.  was  the  agent 
of  the  defendant  at  S.  for  taking  applications  for  in-^urance, 
and  for  delivering  policies  for  the  defendant  con  pa  ly,  and 
that  he  was  notified  by  the  plaintiff  of  the  additional  insurance 
placed  on  plaintiff's  property  and  that  he  did  not  object  to  the 
same  or  suggest  any  breach  of  the  condition  of  the  original 
policy  in  consequence  thereof,  then  the  defendant  is  estopped 
from  now  setting  up  such  additional  insurance  in  avoidance  of 
its  policy. 

Although  you  may  believe,  from  the  evidence,  that  the 
plaintiff,  after  receiving  the  policy  from  the  defendant,  and 
before  the  loss  in  question,  did  obtain  other  insurance  upon  the 
property  to  which  the  companj'  did  not  consent  and  of  which 
they  had  no  notice  until  after  the  fire,  still,  if  you  further  be- 
lieve, from  the  evidence,  that  the  adjusting  agent  of  the  com- 
pany, with  full  knowledge  of  all  the  facts  relating  to  such 
additional  insurance,  told  the  plaintiff  to  go  on  and  make  up 
his  proofs  of  loss  witliout  giving  the  plaintiff  to  understand 
that  the  company  would  rely  upon  a  forfeiture  by  reason  of 
the  additional  insurance,  and  that  the  plaintiff"  did  thereupon 
go  to  the  expense  and  trouble  of  making  up  such  proofs  of 
loss  and  forwarding  them  to  the  company,  this  would  amount 
to  a  Avaiver  of  such  forfeiture,  and  the  company  now  cannot 
claim  the  forfeiture  for  the  purpose  of  avoiding  its  liability  on 
its  policy.     Penn  Ins.  Co.  vs.  Kittle,  39  Mich.,  51. 

You  are  instructed  that  if  you  believe,  from  the  evidence, 
that  at  the  time  of  the  making  of  the  policy  sued  on,  the  as- 
sured had  other  insurance  on  the  same  premises  without  the 


2G0  I^'SUKANCE. 

consent  of  tlio  defendant  company  written  on  the  policy  in. 
question   in   this  case,  and  that  such  other  insurance  was  still 
subsisting  at  the  time  of  the  fii'e,  then  these  facts  rendered  the 
defendant's  policy  void  and  the  jury  should  Und  for  the  de- 
fendant. 

§  8.  Other  Insurance  KnowTi  to  the  Defendant. — Although  the 
Jury  nmy  believe,  from  the  evidence,  that  the  ])laintitf  had 
other  insui'anco  on  the  property  in  question  not  indorsed  upon 
the  policy,  still,  if  tlie  jury  further  believe,  from  the  evidence, 
that  the  existence  of  such  other  insurance  was  known  to  the 
defendant  when  its  policy  was  issued,  then  these  facts  would 
amount  to  a  waiver  of  the  condition  requiring  additional  in- 
surance to  be  indorsed  on  the  policy  or  consented  to  by  the 
defendant  in  writing.  Richardson  vs.  Westchester  F.  Ins. 
Co.s  15  Hr.n,  472;  Carr  vs.  H'lbernia  F.  Ins.  Co.,  2  Mo.  App,, 
466;  Goodall  vs.  ])few  England  Mutual  F.  Ins.  Co.,  25  ]^.  H., 
169;  Ins.  Co.  of  H.  Am.  vs.  McDowell,  50  111.,  120. 

§  0.  Representations  as  to  Incendiarism. — Among  the  ques- 
tions propounded  to  the  insured,  in  the  application  for  insur- 
ance, was  this:  Incendiarism — have  you  any  reason  to  believe 
your  piropcrty  is  in  danger  from  it?  and  the  answer  is,  No. 
And  the  court  instructs  the  jury,  as  a  matter  of  law,  that  that 
question  and  answer  related  to  a  matter  which  was  material  to 
the  risk,  and  if  you  believe,  from  the  evidence,  that  at  the 
time  that  application  was  made  and  the  policy  sued  on  in  this 
case  issued,  the  plaintiff  knew  that  an  attempt  had  then  re- 
cently been  made  to  burn  the  premises  insured,  and  that  he 
failed  to  disclose  that  fact  to  the  defendant's  agent  who  took 
the  application  and  delivered  the  policy,  then  these  facts  would 
render  the  policy  void,  and  the  jury  should  find  for  the  de- 
fendant.    North  Am.  Fire  Ins.  Co.  vs.  Throop,  22  Mich.,  146. 

If  you  believe,  from  the  evidence,  that  a  written  a]-)plication 
for  insurance  was  made  by  the  plaintiff  to  the  defendant,  and 
that  the  policy  sued  on  in  this  case  was  issued  npon  that  appli- 
cation, and  also  that  the  plaintiff  stated  in  that  application 
that  he  had  no  reason  to  fear  that  his  property  was  in  dan- 
ger from  incendiarism,  and  if  you  further  believe,  from  the 
evidence,  that,  as  a  matter  of  fact,  he  then  had  such  reason  to 
fear,  then  your  vcrd.ct  should  bo  for  the  defendant. 


INSURANCE.  201 

Altliongh  you  miy  believe,  from  the  evidence,  tliat  there 
liad  once  been  an  attempt  made  to  burn  tlie  i)remiscs  insured, 
still,  if  yon  further  believe,  from  the  evidence,  that  this  was  so 
long  a  time  before  the  application  was  made  that  tl>e  plaintiff 
did  not  then  fear,  and  had  no  reasonable  ground  to  believe 
that  his  property  was  in  danger  from  incendiaries,  then  a  fail- 
ure to  disclose  such  attempt  to  burn  the  property  would  not 
render  the  jiolicy  void.  North  Ain.  Fire  Ins.  Co.  vs.  Throop., 
22  Mich.,  146. 

Although  you  may  believe,  from  the  evidence,  that  there 
had  once  been  an  attempt  to  burn  the  premises  insured,  still, 
if  you  further  believe,  from  the  evidence,  that  at  the  time  tlie 
application  was  made  the  plaintiff  explained  to  the  agent  who 
took  the  apph'cation,  the  facts  and  circumstances  connected 
with  such  attempt,  and  that  the  agent  told  him  that  it  would 
not  be  necessary  to  mention  it  in  the  application,  etc.,  and 
that  for  that  reason  the  plaintiff  answered,  as  he  did,  the 
inquiry  in  relation  to  incendiaries,  then  such  question  and 
answer  or  the  failure  to  disclose  or  mention  such  attempt  in 
the  application  would  not  render  the  policy  void.  North  Am. 
Ins.  Co.  vs.  Throop,  22  Mich.,  146;  Am.  Ins.  Co.  vs.  Gilbert, 
27  Mich.,  429. 

§  10.  Warranty  as  to  Title. — The  policy  of  insurance  in  this 
case  refers  to  the  written  application  of  the  plaintiff"  and  makes 
it  a  warranty  of  all  the  matter  of  facts  therein  stated.  The 
application  contains  these  questions  and  answers:  Title — is 
your  title  to  and  interest  in  this  property  absolute?  If  not, 
state  its  amount,  and  give  the  name,  interest  and  amount  of 
others  concerned;  answer,  Fes.  The  coui-t  instructs  the  jury 
that  the  legal  effect  of  the  poh'cy  and  of  these  questions  and 
answers  is  that  they  amount  to  a  warranty  that  the  ])laintiff 
was  the  sole  and  absolute  owner  of  the  property.  While  the 
deeds  and  title  papers  introduced  in  evidence  show  that  the 
title  to  an  undivided  half  of  the  property  was  in  one  A.  B. 
at  the  time,  and  your  verdict,  therefore,  must  be  for  the 
defendant,  unless, etc.     JEtna  Ins.  Go.  vs.  Iiesh,¥)  Mich.,  241. 

§  11.  Non-Compliance  with  Conditions. —  Among  the  condi- 
tions of  this  policy  is  this:  ("  If  the  interest  of  the  assured  in 


262  IKSUKANCE. 

the  pro])crtj  bo  otlier  tlian  tlie  entire,  unconditional  and 
sole  ownership  of  the  property  for  the  use  and  benefit  of  the 
assu)-ed,  it  must  be  so  represented  to  the  company,  and  so  ex- 
pressed in  tlie  written  ]iart  of  this  poh'cj,  otherwise  this  policy 
shall  be  void  ;")  and  the  court  instructs  you,  that  if  you  believe, 
from  the  evidenje,  that  the  plaintiff  was  not  the  sole  and  ab- 
solute owner  of  the  property  insured,  holding  the  same  for 
liis  own  use  and  benefit  at  the  time  he  made  the  application 
for  insurance  and  he  did  not  notify  the  agent  of  the  comj^any 
of  that  fact,  then  this  would  render  the  policy  void,  and  the 
plaintiff  cannot  recover,  unless  the  jury  further  believe,  from 
the  evidence,  tiiat  the  agent  of  the  company/ knew  the  facts  in 
relation  to  the  ownership  of  the  property  or  had  knowledge 
of  such  facts  as  ought  to  liave  put  a  reasonably  prudent  and 
careful  man  upon  incpiiry  with  reference  tliereto.  Smith  vs. 
Commomoealth  Lis.  Co.,  49  Wis.,  322. 

If  you  believe,  from  the  evidence,  that  the  agent  who  issued 
the  policy  in  question,  was  previously  informed  of  the  circum- 
stances under  which  the  ];la'ntiff  held  the  title  to  the  proj.erty, 
and  was  furnisiied  with  full  information  which  would  have  en- 
abled him,  by  inquiry,  to  leain  the  facts  in  regard  to  plaintiff's 
title,  and  that  the  agent,  with  such  knowledge,  issued  the  policy 
without  Sjecifj'ing  in  the  policy  the  character  of  the  plaintiff's 
title,  this  was  a  waiver  of  the  condition  in  the  policy  in  refer- 
ence thereto.     Hid. 

§  12.  Furnishing  Proofs  of  Loss. — The  jury  are  instructed, 
that  the  jolicy  in  this  case  i^rovides  that  the  assured  shall, 
after  a  loss  by  fire,  forthwith  give  notice  of  such  loss  to  the 
insurer,  and  as  soon  thereafter  as  possible,  render  to  the  com- 
pany a  ]  articubr  account  of  the  loss,  signed  and  sworn  to  by 
him,  stating,  among  other  things,  how  the  fire  originated,  etc.; 
this  particular  account  and  certificate  of  the  officer  are  what 
are  understood  as  "  proofs  of  loss;"  the  meaning  of  this  lan- 
guage is  that  the  assured  shall,  as  soon  after  the  fire  as  he  rea- 
sonably can  under  all  the  circumstances  of  the  case,  give  notice 
to  the  company  of  the  loss  and  furnish  to  the  company  such 
proofs  of  loss;  that  is,  he  shall  not  be  guilty  of  any  unnecessary 
delay  in  giving  such  notice  or  in  furnishing  such  proofs. 
Columbia  Ins.  Co.  vs.  Lawrence^  2  Peters,  25;  llodgMns  vs. 


INSURANCE.  203 

j\Ioiit(jomeri/,  etc.,  Ins.  Co.,  34  Barb.,  213;  JI(jCa7vnys.  yEtna 
Ins.  Co.,  3  Neb.,  198 ;  Niagara  District  Ins.  Co.  vs.  Lewis,  12 
U.  C.  C.  P.,  123. 

"The  court  instructs  the  jury,  that  if  you  believe,  from  tlic 
evidence,  that  WiUiam  Grunert,  the  insured,  was,  at  the  time 
of  th  )  lire  (September  8,  1880,)  absent  from  his  home  in  Win- 
chester, Illinois,  and  could  not  be  found,  so  as  to  make  proofs 
of  the  loss  within  the  time  specified  by  the  policy,  then  in  tliat 
case,  such  proofs  of  loss  could  be  made  by  the  agent  of  the 
said  William  Grunert."  Wood  on  Fire  Ins.,  p.  693,  §413; 
Ai/res  vs.  Hartford  Ins.  Co.,  17  Iowa,  176;  Farmers''  Mutual 
Ins.  Co.  vs.  GrayviUe,  74  Pa.  St.,  17;  0^  Cmnor  vs.  Hartford 
Fire  Ins.  Co.,  31  Wis.,  160;  Northwestern  Ins.  Co.  vs.  Adhin- 
son,  3  Bash  (Ky.),  328;  Sims  vs.  State  Ins.  Co.,  47  Mo.,  54; 
Ger.  F.  Ins.  Co.  vs.  Grunert,  112  111.,  60. 

You  are  instructed,  that  in  this  case,  the  policy  provides, 
among  other  things,  that  the  loss  shall  not  be  payable,  until 
the  expiration  of  (sixty  days)  after  the  proofs  of  loss  have 
been  furnished,  etc.  And  these  proofs  of  loss  are  I'cquired  to 
be,  etc,  (following  the  policy).  And  if  the  jury  believe,  from 
the  evidence,  that  such  proofs  of  loss  had  not  been  furnished 
to  the  company  at  least  (sixty  days)  before  the  commencement 
of  this  suit,  then  the  jury  should  find  for  the  defendant,  unless 
the  jury  further  believe,  from  the  evidence,  that  the  produc- 
tion of  such  proofs  of  loss  was  in  some  manner  waived  or 
excused  by  the  defendant,  as  explained  in  these  instructions 
Ilamman  vs.  The  Queen  Ins.  Co.,  49  Wis.,  7J. 

The  policy  of  insurance  sued  on  in  this  case,  provides  that 
(set  out  the  provisions  relating  to  furnishing  proofs  of  loss  and 
forfeiture)  this  time  and  condition  having  been  fixed  by  the 
parties,  they  are  bound  by  it,  and  if  you  believe,  by  the  evi- 
dence, that  the  plaintiff  did  not,  within,  etc.,  then  he  has  for- 
feited his  right  to  recover  in  tiiis  suit,  and  you  should  find  for 
the  defendant,  unless  you  further  believe,  from  the  evidence 
that  the  defendant  has  in  some  way  waived  or  excused  the 
necessity  for  furnishing  such  proofs  of  loss,  as  explained  in 
these  instructions.  Aurora  F.  &  M.  Ins.  Co.  vs.  Kranich,  36 
Mich.,  289. 

If  ycu  believe,  from  the  evidence,  that  tlie  jilaintiff  gave  to 
the  defendant,  or  to  its  authorized  agents,  notice  and  proofs 


26i  INSURANCE. 

of  the  alleged  loss  more  tlian  sixty  days  before  the  bringins; 
of  this  suit,  and  that,  under  all  the  circumstances  appearing  in 
evidence,  he  did  so  within  a  reasonable  time  after  the  alleged 
loss,  and  without  unnecessary  or  unreasonable  delay,  then  the 
defendant  cannot  defeat  the  plaintiff's  right  of  rccovej-y  on  the 
ground  of  alleged  delay  in  giving  notice  or  making  proofs  of 
the  loss,  provided  you  believe,  from  the  evidence,  under  the 
instruction  of  the  court,  that  the  plaintiff  is  otherwise  entitled 
to  recover. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  did  not, 
within  a  reasonable  time,  and  as  soon  as  it  could  conveniently 
be  done,  after  the  alleged  loss,  ser\e  notice  of  the  loss  upon 
the  defendant  com  [-any  or  its  agents,  and  that  he  was  not 
delayed  in  serving  such  notice  by  any  act  or  statement  of  the 
defendant  company  or  its  agents,  then  you  should  tind  for  the 
defendant. 

§  13.  Waiving:  Proofs  of  Loss. — If  the  jury  believe,  from  the 
evidence,  that  the  plaintiff  within,  etc.,  furnished  to  the  de- 
fendant what  purported  to  be  proofs  of  loss,  though  not  in 
exact  conformity  with  the  terms  of  the  policy,  and  that  these 
proofs  were  accepted  by  the  company  without  objection  or 
without  suggesting  that  they  did  not  conform  to  the  terms  of 
the  policy  and  objecting  to  them  for  that  reason,  then  the  de- 
fendant is  estopped  from  claiming  that  such  proofs  were  insuf- 
ficient. Hamman  vs.  The  Queen  Ins.  Co..,  49  Wis.,  71;  Ken- 
ney  vs.  Home  Ins.  Co.,  71  N.  Y.,  396;  Spratteij  vs.  Hartford 
Ins.  Co.,  1  Dill.  Cir.  Ct.,  392;  Patterson  vs.  Triumph  Ins.  Co., 
64  Me.,  500;  St.  Louis  Ins.  Co.  vs.  Xayle,  11  Mo.,  278. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  fur- 
nished to  the  defendant  within,  etc.,  what  pur]iorted  to  be 
proofs  of  loss,  though  not  in  exact  conformity  to  the  require- 
ments of  the  policy,  and  that  they  were  objected  to  upon  that 
ground,  still,  if  you  further  believe,  from  the  evidence,  that 
the  defendant  then  denied  any  liability  to  the  plaintitf  under 
said  policy,  and  dec^ucd  that  the  company  would  ]iay  no 
alleged  claim  thereunder,  then  such  declarations  amounted  to 
a  waiver  of  any  further  proof  of  loss,  and  the  ))laintiff  was 
under  no  obligation  to  fuiiiish  any  others.  IlanDnan  vs.  TJie 
Queen  Ins.  Co.,  49  Wis.,  71;  Bennett  vs.  Maryland  Ins.  Co., 


INSUKANCE.  265 

14  Blatclif.,  422;  Bogers  vs.  Traders'  Ins.  Co.,  6  Paige  Cb., 
5S3;  rh'dUps  vs.  Protection  Lis.  Co.,  44  Mo.,  220. 

You  are  instructed,  that  the  ])rovision  in  the  policy  in  rela- 
tion to  the  time  of  furnishing  the  j)roofsof  loss  is  inserted  for 
the  benefit  of  the  company  and  if  the  company  chooses  to 
waive  it,  it  can  do  so. 

Mere  silence  in  regard  to  the  furnisliing  of  such  proofs  is 
not  to  be  taken  as  a  waiver  of  the  right  of  the  conijiany  to  in- 
sist on  a  strict  compliance  with  the  terms  of  the  contract.  In 
order  to  amount  to  a  waiver,  etc.,  you  must  find,  from  the 
evidence,  that  there  was  either  an  express  agreement  between 
the  parties  to  that  effect  or  else  tliat  there  was  such  a  course 
of  conduct  on  the  part  of  the  defendant  as  was  reasonably  cal- 
culated to  throw  the  insured  off  his  guard  and  lead  him  to 
believe  that  the  company  did  not  require  sucli  proofs. 

And  in  this  case,  if  you  believe,  from  the  evidence,  that  the 
agent  of  the  company  said  to  the  plaintiff  after  the  com]\Tny 
had  notice  of  the  loss  and  had  inquired  into  the  circumstances 
attending  it,  that  they  would  not  pay  any  claim  under  that 
policy  for  the  reason  (because  the  buikling  was  not  occupied 
at  the  time  of  the  fire)  this  would  amount  to  a  waiver  of  the 
necessity  of  furnishing  proofs  of  loss.  Auroi^a  F.  eft  M.  Ins. 
Co.  vs.  Kranich,  36  Mich.,  2S9;  Keenan  vs.  Mo.  St.  Mutual 
Ins.  Co.,  12  la.,  126. 

You  are  instructed  that  in  order  to  effect  a  waiver  of  the 
condition  in  the  policy  regarding,  etc.,  you  must  believe,  from 
the  evidence,  that  the  officers  or  agents  of  the  comjiany  either 
said  or  did  something  reasonably  calculated  to  mislead  the 
plaintiff  or  throw  him  off'  his  guard  in  resi.ect  to,  etc.;  mere 
silence  is  not  enough  from  which  to  infer  a  waiver  of  this 
condition  of  the  policy.  And  in  this  case,  if  you  believe,  from 
the  evidence,  etc.,  this  would  not  amount  to  a  waiver  of  the 
condition  in  the  policy.  Muller  vs.  S.  S.  F.  Ins.  Co.,  87 
Penn.  St.,  399 ;  McDermott  vs.  Lycoming  Ins.  Co.,  44  JS".  Y. 
S.  Ct.,  221. 

The  jury  are  instructed,  that  an  insurance  company  may 
waive,  not  only  imperfections  and  deficiencies  in  the  statement 
of  loss  and  proofs  required  by  the  policy,  but  it  ma}'  also  waive 
a  prompt  compliance  with  the  provisions  of  the  policy  as  to  the 
time  of  giving  notice  and  presenting  proofs  of  loss.     And  if 


266  INSUKANCE. 

the  jury. believe,  from  tlie  evidence,  that  the  ]ilaiiitiff,  Lcfore 
the  expiration  of  a  reasonable  time  for  furnishing  proofs  of 
loss  after  the  fire,  went  to  an  agent  of  the  company  and  re- 
quested time  for  furnishing  such  proofs,  and  was  then  told  by 
the  agent  that  the  question  of  title  was  the  only  question  so 
far  as  tlie  company  was  concerned,  and  that  he  might  take 
his  own  time  to  prepare  and  furnish  proofs,  to  furnish  tliem 
at  his  convenience,  and  plaintiff,  relying  upon  such  statements, 
neglected  to  prepare  the  proofs  as  soon  as  lie  might  otlierwisc 
liave  done,  but  did,  afterwards,  at  his  convenience  and  more 
than  sixty  days  prior  to  the  bringing  of  this  suit,  furnish  to 
the  company  proofs  of  loss,  then  the  com  >any  are  estopped 
from  objecting  that  the  proofs  were  not  furnished  in  proper 
time.  Underwood  vs.  Farmers''  Joint  Stock  Ins.  Co.,  57  X.  Y., 
500;  Djhn  vs.  Farmers^  Joint  Slock  Ins.    Co..  5  Lans.,  275. 

§  14.  Condition  to  Render  A cco'int  of  Loss  Forthwith. — Policy 
containing  this  provision:  "Persons  sustaining  loss  or  damage 
by  fire  shall  forthwith  give  notice  of  said  loss  to  the  company, 
and,  as  soon  thereafter  as  possible,  render  a  particular  account 
of  such  loss,"  etc. 

§  15.  "NVlien  Agent  Cannot  Waive  Proofs  of  Loss. — The  jury 
are  instructed  that  the  defendant  company  cannot  be  affected 
by  any  statement  which  their  agents  at  C.  may  have  made  to 
the  plaintiff  upon  the  subject  of  his  serving  upon  the  comj^any 
notice  of  loss  or  proofs  of  loss,  as  required  by  the  policy,  if  the 
jury  believe,  from  the  evidence,  tl)at  such  statements  were 
made  after  the  plaintiff  had  had  a  reasonable  time  after  the  fire 
Mnthin  which  to  have  given  such  notice  or  to  have  made  such 
proofs,  and  he  had  not  done  so. 

And  if  you  believe,  from  the  evidence,  that  the  plaintiff  did 
not  within  a  reasonable  time  and  without  unnecessar}'  delay 
})repare  and  serve  upon  the  company  the  proofs  of  loss  referred 
to  and  explained  in  these  instructions  upon  that  point,  then  you 
should  find  the  issues  for  tlie  defendant,  unless  you  further  be- 
lieve, from  the  evidence,  that  prior  to  the  expiration  of  a  rea- 
sonable tinie  after  the  fire  for  delivering  such  proofs  of  loss, 
consent  was  given  by  the  agents  of  the  company  that  the  time 
for  presenting  such  proofs  of  loss  might  be  extended. 


INSUKANCE.  2G7 

§  IG.  Premises  Becoming  Unoccupied. — Tlie  jury  arc  in- 
structed that  tlic  policy  of  insurance  in  this  case  provides  that, 
if  the  premises  insured  become  unoccupied  and  so  remain 
for  thirty  days  without  the  assent  of  tlie  company  indorsed 
thereon,  then  the  policy  should  become  void.  And  if  the  jury 
beb'eve,  from  the  evidence,  that,  at  the  time  of  the  fire,  the 
premises  were  unoccupied,  and  that  they  had  been  so  unoc- 
cupied for  thirty  days,  or  more,  before  the  tire,  without  the 
consent  of  the  company,  then  the  policy  had  become  void,  and 
the  jury  should  lind  for  the  defendant. 

In  determin  ng,  under  the  evidence,  whether  tlie  premises 
became  unoccupied  and  so  remained  for  tliirty  days  or  more, 
at  and  before  the  loss,  you  are  instructed,  as  a  matter  of  law, 
that  when  the  property  insured  is  a  dwelling  liouse,  the 
occupancy  required  under  such  a  policy  as  this,  is  such  occti- 
pancy  as  ordinarily  attends  a  dwelling  house;  the  word  "  unoc- 
cupied" in  the  policy  is  to  be  construed  in  its  ordinary  and 
popular  sense;  and  if  you  believe,  from  the  evidence,  that 
after  the  making  of  the  jiolicy,  the  insured  wnth  his  family 
removed  from  the  house  and  ceased  to  occupy  the  same  as  a 
dwelling  house  until  the  loss,  and  that  this  had  continued  for 
thirty  days  or  more  before  the  fire,  then  the  policy  became 
void,  and  you  should  find  for  the  defendant.  Western  As- 
surance Go.  vs.  ^lason,  5  Brad.,  141;  Wkitney  vs.  Black 
Elver  Ins.  Co.,  72  K  Y.,  117. 

One  of  the  representations  made  by  the  plaintiff  in  the 
application  upon  which  the  policy  was  issued  was  thia  (set  out 
the  representation  as  to  occupancy)  and  the  tpolicy  provides 
among  other  things  that  (set  out  the  condition  as  to  the  prem. 
ises  becoming  vacant).  Now,  if  you  believe,  from  the  evi- 
dence, that  at  the  time  of  the  tire  the  premises  were  vacant, 
and  that  the  defendant  and  its  officers  and  agents  had  had  no 
knowledge  or  notice  of  this  fact,  then  the  plaintiff  cannot 
recover.  Aurora  F.  <&  M.  Ins.  Co.  vs.  Kranich.,  38  Mich., 
289 ;  Cans  vs.  St.  Paul  F.  Ins.   Co.,  43  Wis.,  108. 

If  you  believe,  from  the  evidence,  that  the  premises, 
etc.,  were  unoccupied  at  the  time  the  policy  was  issued,  and 
that  the  agent  of  the  company  who  took  the  a]fplication  and 
issued  the  policy  knew  this  fact,  then  the  fact,  if  proved,  that 
the  premises  were  unoccupied  at  the  time  of  the  fire  will  con- 


268  INSURANCE. 

etitute  no  defense  to  tliis  action.  Auroi\i  F  &,  3/.  Ins.  Co.  vs. 
Kranic\  36  Mich.,  '289;  JEtna  Ins.  Co.  vs.  Meyei^s,  63  Ind., 
238. 

§  17.  Premises  Temporarily  Vacant. — Altlioiigli  the  jury  may 
believe,  from  the  evidence,  that  the  lionse  was  vacant  and 
unoccupied  at  the  time  of  the  lire,  still,  if  the  jury  further  be- 
lieve, from  the  evidence,  that  such  vacancy  was  but  temporary, 
and  was  occasioned  by  the  fact  that  one  tenant  had  but  a  day 
or  two  before  moved  out  to  enable  another  tenant  to  move  in, 
and  that  such  new  tenant  had  engaged  to  move,  and  was  abont 
to  do  so  when  the  fire  occimed,  this  would  not  render  the 
premises  vacant  and  unoccupied  within  the  meaning  of  the 
policy  of  insurance.  AMiitney  vs.  Black  River  Ins.  Co.,  72 
N.  Y.,  117;  Cu7nmi7is  vs.  Agrimltural  Ins.  Co.,  67  N.  Y.,  260. 

§  18.  False  Swearing  in  Proofs  of  Loss,  etc. — In  regard  to  the 
sworn  statement  of  plaintiff  in  his  proof  of  loss  that  (he  was 
the  owner  in  fee  simple  of  the  premises,  etc.,)  the  court 
instructs  3'ou  that  although  yon  may  believe,  from  the 
evidence,  that  the  plaintiff  at  the  time  was  occupying  the  prem- 
ises under  a  lease,  these  facts  alone  would  not  constitute  a 
defense  to  this  action.  In  order  to  create  a  defense  under  the 
condition  of  the  policy  in  relation  to  false  swearing,  it  must 
appear,  from  the  evidence,  that  the  plaintiff  not  only  swore 
falsely,  but  that  he  did  so  willfully  and  knowingly  and  with 
the  intention  of  deceiving  the  officers  of  the  company.  Dogge 
vs.  Hat.  Ins.  Co.,  49  Wis.,  501 ;  Ins.  Co.  vs.  Mides,  14  Wal 
lace,  375;  Franklin  Ins.  Co.  vs.  Culver,  6  Ind.,  137;  Planters' 
Mat.  Ins.  Co.  vs.  Dsfordet  al.,  38  Md.,  328 ;  Little  vs.  Fhamix 
Ins.  Co.,  123  Mass.,  380;  Parker  vs.  A7nazo7i  Ins.  Co.,  34 
Wis.,  363;  Marion  vs.  Great  Rejpuhlic  Ins.  Co.,  35  Mo.,  148; 
iya7ikVm  F.  Lis.  Co.  vs.  Vpdeg7\iff,  43  Penn.  St.,  350. 

Although  you  may  believe,  from  the  evidence,  that  the 
plaintiff  was  not  the  owner  of  the  premises  insured,  but  was 
only  occupying  the  same  under  a  lease  at  the  time  of  the  loss, 
still,  if  you  further  believe,  from  the  evidence,  that  the 
])laintiff,  wfien  he  SM-oi-e  to  his  proofs  of  loss,  owing  to  his 
ignorance  of  tho  English  language,  or  of  the  meaning  of  the 
•words  "owner  in  fee  simple"  innocently  and  miwillingl}',  and 


INSUKANCE.  269 

without  any  intention  to  doecivc,  swore  falsely  regarding  his 
interest  in  the  proj;crty,  this  would  not  of  itself  prevent  a 
recovery  in  this  case. 

If  you  believe,froin  the  evidence,  that  the  ])laintiff  included 
in  his  proofs  of  lois,  which  lie  furnished  to  the  company, 
articles  of  property  which  did  not  belong  to  hini,  knowingly 
and  with  intent  to  defraud  the  company,  knowing  that  he  had 
no  right  so  to  do,  this  would  avoid  the  policy,  and  the  ])laintitf 
cannot  recover  in  this  suit.  Farmer^  Mutual  F.  Ins.  Co. 
vs.  Garrett,  42  Mich'.,  289;  Geih  vs.  International  Ins.  Co., 
1  Dill.  Cir.  Ct.,  443. 


CHAPTER  XXV. 

IXTOXICATIXG  LIQUORS. 


Sec.  1.  Suit  by  wife — Statutory  provisions. 

''I.  What  must  be  proved. 

3.  Defendan  s  jointly  and  severally  liable. 

4.  Sufficient  if  the  liquor  sold  contributed  to,  etc. 

5.  Owners  of  premises. 

6.  Suit  against  saloon-keeper  and  owner  of  buihling,  jointly. 

7.  Propriety  of  the  law  not  a  question  for  the  jury. 

8.  Burden  of  proof — What  must  be  proved. 

9.  Proximate  cause,  what. 

10.  New  or  intervening  cause. 

11.  Preponderance  of  the  evidence  sufficient. 

12.  Good  faith  not  a  mitigation  of  damages,  when. 

13.  The  verdict  must  be  founded  on  evidence. 

Note. — The  statutes  of  the  different  states,  giving  a  right  of  action  for 
injuries  sustained  in  consequence  of  the  intoxication  of  any  person,  vary 
somewhat  in  their  details,  although  they  are  similar  in  their  gen?ral  feat- 
ures. The  following  instructions,  adapted  to  this  class  of  cases,  with  slight 
changes,  will  generally  be  found  applicable  to  the  laws  of  most  of  the  differ- 
ent states. 

§  1.  Suit  by  a  Wife — Statntory  Provisions. — The  jury  are 
instructed,  that  bj  the  law  of  this  state,  every  person  who 
sells  or  gives  intoxicating  liquors  to  another,  and  thereby,  in 
whole  or  in  part,  causes  the  intoxication  of  such  person,  is 
liable  to  the  wife  of  the  person  so  becoming  intoxicated,  for 
any  injury  which  she  may  sustain  in  her  means  of  support, 
resulting  from  the  death  of  her  husband,  if  liis  death  ensues 
as  a  consequence  of  such  intoxication.  O'  Hallo  ran  vs.  Kings- 
ton, IQ  111.  App.,  659. 

The  statute  of  this  state  provides  that  every  wife,  who 
shall  be  injured  in  person  or  property,  or  means  of  supj^ort 
in  consequence  of  the  intoxication,  habitual  or  otherwise,  of 
her  husband,  may  have  a  right  of  action  in  her  own  name 
against  any  persons  who  shall,  by  selling    or  giving   intoxi- 

(270) 


INTOXICATING    LIQUOKS.  271 

eating  liquors  to  her  liusLand,  have  caused  such  intoxication 
in  whole  or  in  part. 

§  2.  What  Must  be  Proved. — The  juiy  are  instructed,  that 
if  they  believe,  from  the  evidence,  that  the  plaintiff  was  the 
wife,  and  is  now  the  widow  of  the  said  F.  M.,  and  that  the 
said  defendants,  or  any  or  either  of  them,  or  the  servants, 
employes  or  any  person  acting  for  said  defendants,  or  any  or 

either  of  them,  did  on  or  about sell  or  give  to  the  said 

F.  M.  beer,  or  any  intoxicating  liquor,  and  thereby,  in  whole 
or  in  part,  cause  the  intoxication  of  the  said  M.,  and  that 
the  said  M.,  while  nnder  the  influence  of  such  intoxication, 
and  in  consequence  thereof,  lost  his  life  in  manner  and  form 
as  charged  in  the  declaration,  and  that  the  plaintiff  was  there- 
by damaged  in  her  means  of  support,  then  the  jury  should 
find  the  said  defendants,  or  such  of  them  as  are  proved  to 
have  contributed  to  such  intoxication,  in  whole  or  in  part, 
guilty,  and  assess  the  plaintiff's  damages.  I'ountain  vs. 
Draper,  49  Ind.,  441;  Emory  vs.  Addis,  71  111.,  273;  ^ool- 
heather  vs.  liisley,  38  la.,  486 :  Worley  vs.  Spurgeon,  48  la., 
465 ;  Kehrig  vs.  Peters,  41  Mich.,  475 ;  Flynn  vs.  Fogerty, 
106  111.,  263. 

§  3.  Defendants  Jointly  and  Severally  Liable. — The  jury  are 
further  instructed,  that  in  actions  of  this  kind,  it  is  not  neces- 
sary to  make  all  persons  who  have  been  guilty  of  selling  in- 
toxicating liquors  to  the  deceased,  defendants  in  a  suit  for 
damages,  if  any,  resulting  from  intoxication,  caused  by  their 
joint  act  and  sales,  but  the  person  injured  may  sue  any  one  or 
more  of  the  persons,  who,  by  themselves,  their  agents  or 
employes,  made  such  sale,  and  recover  from  him  or  them,  if 
found  guilty,  the  damages  sustained. 

§  4.  Sufficient  if  the  Liquor  Sold  Contributed,  etc. — The  jury 
are  further  instructed  that  though  they  may  believe,  from  the 
evidence,  that  the  deceased  had  liquor  in  his  house,  or  about 
his  person,  or  had  bought  or  taken  it  at  places  other  than  at 
the  saloon  of  the  defendants,  still,  this  fact  would  constitute  no 
defense  to  this  action;  provided  the  jury  believe,  from  the 
evidence,  that  the  deceased  obtained    intoxicating   liquors  at 


272  INTOXICATING    LIQUOES. 

the  saloons  of  tlio  defendant,  which  contributed  to  his  intoxi- 
cation, and  that  his  death  re.ni'ted  as  a  cjnsequence  of  sucli 
intoxication.  R  dh  vs.  Eppu^  80  111.,  233;  Boyd  vs.  Vi^atU 
27  Ohio  St.,  259;   ^Voollieather  vs.  Bisleij,  38  la.,  486. 

In  order  to  make  a  dram-shop  keeper  liable  for  injuries 
occasioned  by  intoxication,  which  results  from  tlie  drinkint^  of 
intoxicating  liquors  sold  by  him,  it  is  not  necessary  that  such 
inloxication  should  be  wholly  jiroduced  by  liquor  sold  by  him; 
it  is  on^y  necessary  to  show  that  the  liquor  sold  by  him  con- 
tributed or  assisted  in  producing  such  intoxication.  O" Hal- 
loran  vs.  Kingston,  16  111.  A  pp.,  659. 

Even  though  the  jury  believe,  from  the  evidence,  that  the 
intoxication  complained  of  resulted  in  part  from  liquors  drank 
by  the  said  B.  before  he  -went  to  the  saloon  of  the  defendant, 
still  that  fact  affords  no  defense  in  this  case,  if  the  jury  further 
believe,  from  the  evidence,  that  the  defendant  sold  intoxicat- 
ing liquors  to  deceased,  and  that  the  intoxicating  liquors  so 
sold  by  defendant  contributed  or  assisted  to  produce  such 
intoxication,  and  that  deceased  died  in  consequence  of  sucdi 
intoxication. 

§  5.  Owner  of  the  Premises,  ete. — The  jury  are  instructed, 
that  under  our  statute,  the  owner  of  premises  upon  which  in- 
toxicating liquors  are  kept  for  sale,  contrary  to  law,  is  not 
guilty  of  an  offense  if  he,  in  good  faith,  leased  them  for  a  law- 
ful purpose,  and  did  not  afterwards  affirmatively  assent  to  such 
unlawful  use;  the  more  failure  to  prevent,  or  to  attemi)t  to 
]irevent,  the  illegal  use  or  sale  of  the  liquors,  does  not  subject 
him  to  the  penalties  of  the  statute.  State  vs.  Ballingall^  42 
la.,  87. 

§  6.     Suit  against  the  Saloon-Keeper  and  Ovmer  of  the  Bnilding 

Jointly. — The  court  instructs  the  jury,  that  the  law  under  m  hich 
this  suit  is  brought,  provides  that  every  wife,  who  shall  be 
injured  in  person  or  property,  or  means  of  support,  in  conse- 
quence of  the  intoxication,  habitual  or  otherwise,  of  her  hus- 
band, may  have  a  right  of  action,  in  her  own  name,  against 
any  person  or  persons  who  shall,  by  selling  or  giving  intoxi- 
cating liquor  to  her  husband,  have  caused  such  intoxication,  in 
whole  or  in  part;  aTid  the  law  further  provides,  that  any  per- 


INTOXICATING     LIQUORS.  273 

son  owning  any  building  or  premises  where  such  liquors  are 
sold,  knowing  that  intoxicating  liquors  are  sold  therein,  and 
knowingly  permitting  such  sale,  shall  be  liable  jointly  with  the 
person  or  persons  selling  or  giving  such  intox'cating  liquors, 
for  all  damages  which  may  be  sustained  in  the  manner  above 
stated.     Loan  vs.  Illney,  53  la.,  S9. 

The  jury  are  furtlier  instructed,  that  if  they  find,  from  the 
evidence,  that  the  defendant,  H.  H.,  is  guilty,  as  charged  in 
the  declaration,  and  if  they  further  find,  from  the  evidence, 
that  the  other  defendant,  S.  11.,  was  the  owner  of  the  building 
or  premises  where  the  liquoi-s  were  sold  or  given  to  the  de- 
ceased, and  that  he  then  knew  that  the  said  defendant,  H.  H., 
was  keei)ing  a  saloon  on  said  premises,  and  selling  intoxicating 
liquors  therein,  and  knowingly  permitted  such  sales,  then  the 
jury  will  find  both  the  defendants  guilty,  and  assess  the  dam- 
ages equally  against  both,  if  any  damages  have  been  proved. 

§   7.     Propriety  of  the  Law  not  a  Question  for  the  Jury. — The 

court  instructs  the  jury,  that  it  is  not  for  them,  in  this  case, 
to  inquire  into  or  consider  the  propriety  of  the  law  now  in 
force,  relating  to  the  sale  of  intoxicating  liquors,  under  which 
this  action  is  brought.  The  law,  as  it  stands  u]ion  the  statute 
book  of  this  state,  should  be  enforced;  and  if  the  jury  believe' 
from  the  evidence  in  this  case,  that  the  defendants,  or  any  or 
either  of  them,  contributed  to  the  intoxication  of  plaintiff's 
liusband.  if  such  intoxication  has  been  proved,  and  that  in  con- 
sequence of  such  intoxication,  her  husband  died,  as  alleged  in 
plaintiff's  declaration,  and  that  the  plaintiff  has  been  injured, 
in  her  means  of  support,  by  reason  of  such  death,  then  the 
jury  should  find  for  the  plaintiff,  as  against  such  of  the  de- 
fendants as  have  b3eu  proved  to  have  contributed  to  such 
intoxication,  in  whole  or  in  part. 

§  8.  Burden  of  Proof— What  Must  be  Proved. — The  court 
instructs  the  jury,  that  to  entitle  the  plaintiff  to  recover,  it 
must  be  proved,  by  a  preponderance  of  evidence,  that  the  de- 
fendants, or  one  of  them,  sold  intoxicating  liquors  to  the 
deceased,  and  thereby  contributed  to  cause  his  intoxication,  in 
whole  or  in  part,  and  that  his  death  resulted  as  a  consequence 
of  such  intoxication. 
18 


274  IKTOXICATING     LIQUORS. 

To  entitle  the  plaintiff  to  recover  in  this  suit,  it  is  no^" 
enough  for  her  to  sh  »\v  that  she  has  been  injured  iu  her 
means  of  support,  hy  the  death  of  her  husband  ;  it  must 
further  appear,  from  the  evidence,  that  such  death  was  caused 
by,  or  was  in  consequence  of,  his  intoxication,  and  that  defend- 
ants, or  one  of  them,  sold,  or  gave  him  intoxicating  liquors, 
which  produced  such  intoxication,  in  whole  or  in  part;  and 
each  of  these  particulars  must  be  proved  by  a  preponderance 
of  the  evidence. 

To  entitle  the  plaintiff  to  recover  in  this  suit,  it  is  not 
enough  that  the  jury  may  believe,  from  the  evidence,  that  the 
defendants,  or  one  of  them,  sold  beer  to  the  deceased,  whio^i 
contributed  to  cause  his  intoxication,  in  whole  or  in  part;  it 
must  fui'ther  appear  that  the  intoxication  was  the  immediate 
or  proximate  cause  of  liis  death,  and  not  merely  xliat  it  wo>i 
the  remuti  cause  or  occasion  of  his  death. 

The  court  instructs  the  jury,  that  to  entitle  the  plaintiff  to 
recover  against  any  one  or  more  of  the  defendants,  the  jury 
must  believe,  from  the  evidence,  that  such  defendants  sold  or 
gave  intoxicating  liquors  to  the  deceased,  and  thereby  caused 
or  contributed  to  cause,  his  intoxication,  in  whole  or  in  part; 
and  so  far  as  the  injury  complained  of  results  from  the  death 
of  the  deceased,  it  must  appear  that  the  death  was  caused  by 
such  intoxication.  Kratch  et  al.  vs.  Heihnan,  53  Ind.,  517; 
Ihjn  vs.  Fojarty,  106  III,  263. 

§  9.  Proximate  Cause,  AVhat. — In  determining  whether  an 
act  is  the  proximate  cause  of  an  injury,  the  legal  test  is:  Was 
the  injury  of  such  a  character  as  might  reasonably  have  been 
foreseen  or  expected,  as  tiie  natural  result  of  the  act  com- 
plained of?  A  party  is  not,  in  law,  chargeable  with  i-esults 
Avhich  do  not  naturally  and  reasonably  follow  as  the  conse- 
quences of  his  conduct. 

In  determining  whether  the  intoxication  was  the  immediate 
or  proximate  cause  of  the  death  of  the  deceased,  the  jury 
should  consider  whether  the  causes,  which  actually  produced 
his  death,  were  such  as  naturally  resulted  as  a  consequence  of 
the  intoxication,  and  of  such  kind  as  might  liave  been  reason- 
ably antici])ated  by  a  reasonable  person.  If  they  were  not 
such,  then  the  intoxication  cannot,  in  law,  be  regarded  as  the 


INTOXICATING    LIQUORS.  275 

immediate  and  proximate  cause  of  his  death,  and  tlie  defend- 
ants are  responsible  therefor. 

If  the  jury  believe,  from  tlie  evidence,  tliat  the  immediate 
and  proximate  cause  of  the  deatli  of  tlie  deceased  was  either 
apoplexy,  heart  disease  or  sunstroke,  tlien  tlie  plaintiff  cannot 
recover  in  tliis  case,  unless  the  jury  further  believe,  from  the 
evidence,  that  such  disease  was  caused  bj,  or  was  the  natural 
and  proximate  result  of  tlie  intoxication  of  the  deceased,  and 
that  such  intoxication  was  caused,  in  whole  or  in  part,  by  the 
intoxicating:  liquors  furnished  by  the  defendants,  or  one  of 
them ;  and  further,  that  such  a  result  of  the  sale  of  tlie  intox- 
icating liquors  mio-ht  have  been  reasonably  foreseen  or  antici- 
pated by  the  defendants,  at  tlie  time  such  liquors  were  sold. 

As  a  matter  of  law,  damages,  to  be  recoverable,  must  be  the 
natural  and  reasonable  result  of  the  defendant's  act;  and  if  of 
such  a  character  as  in  the  ordinary  course  of  things  woidd 
flow  from  the  act,  they  may  be  recovered,  otherwise  they  are 
too  remote.  A  party  cannot  be  lield  resj^onsible  for  injuries 
M'hich  could  not  reasonably  have  been  foreseen  or  ex]3ected,  as 
the  result  of  his  misconduct.  Phillips  vs.  Diclerson,  85  111,, 
11;  8hugaj't\B.  Egan,^Z\\].,  56;  Schrocder  vs.  Crawford,  94 
111.,  357;  Hart  vs.  Duddleson,  20  111.  App.,  619. 

An  act  is  the  proximate  cause  of  an  event  only  when,  in  the 
natural  course  of  things  and  under  the  particular  circumstances 
surrounding  it,  such  an  act  would  naturally  produce  the  event, 
and  in  order  to  create  legal  liability  for  damages,  the  injury 
must  be  such  as  a  man  of  ordinary  experience  and  sagacity 
could  foresee  might  probably  ensue  from  said  act. 

The  court  instructs  the  jury,  that  to  entitle  the  plaintiff  to 
recover  in  this  case,  the  damages  claimed  must  be  the  direct 
consequences  of  the  act  complained  of.  The  relation  of  cause 
r.iid  effect  must  be  shown  to  exist  between  the  act  complained 
of  and  the  injury;  and  this  relation  of  cause  and  effect  cannot 
be  made  out  by  inchiding  the  illegal  acts  of  a  third  person. 

§  10.  New  or  Intervening  Cause. — The  court  instructs  the 
jury,  as  a  matter  of  law,  that  while  a  man  is  answerable  for 
the  natural  and  probable  consequences  of  his  own  acts,  still,  if 
his  act  happens  to  concur  with  something  extraordinary,  and 
not  reasonably  to  have  been  foreseen,  and  thus  produce  an  in- 
jury, he  will  not   be   liable  therefor;  provided,  such  extraor- 


276  INTOXICATING    LIQUOES. 

dinary  and  unforeseen  condition  was  not  produced  by,  or  was 
not  the  direct  result  of,  Lis  own  wrongful  act. 

If  the  death  of  a  party,  who  receives  a  wound  while  intoxi- 
cated, can  be  traced  as  the  natural  and  probable  result  of  any 
new  and  intervening  cause,  such  as  reckless  exposure  of  him- 
self, or  amputation  of  the  wounded  limb,  where  an  amputation 
was  not  necessary,  the  liquor  seller  will  not  be  responsible  to 
the  wife  for  the  death. 

The  damages  to  be  recovered  in  an  action  must  always  be 
the  natural  and  proximate  consequence  of  the  wrongful  act 
complained  of.  If  a  new  force  or  power  has  intervened,  of 
itself  sufficient  to  stand  as  the  cause  of  the  mischief  or  injury, 
the  first  must  be  considered  as  too  remote.  Schmidt  vs. 
Mitchell,  84  111.,  195. 

§  11.  Preponderance  of  Evidence  Sufficient.^ — The  jury  are 
further  instructed,  that  in  civil  actions  of  this  kind,  it  is  not 
necessary  that  the  fact  of  the  sale  of  intoxicating  liquors,  or 
any  other  fact  necessary  to  a  recovery,  should  be  proved  be- 
yond a  reasonable  doubt;  it  is  only  necessary  that  the  facts 
should  be  proved  to  the  satisfaction  of  the  jury  by  a  pre- 
ponderance of  the  evidence.  Mayers  vs.  Smith,  13  N.  E. 
Eep.,  219. 

§  12.  Good  Faith  not  a  Mitiffation.  When. — The  jury  are  in- 
structed, that  although  they  may  believe,  from  the  evidence, 
that  any  or  either  of  the  defendants,  in  good  faith,  instructed 
his  bar-keepei-  not  to  sell  liquor  to  the  deceased,  still,  this  fact 
cannot  be  considered  by  the  jury  in  miti<.'ation  of  the  actual 
damages  sustained  by  the  plaintiff,  if  any  such  have  been 
proved,  in  case  you  find  such  defendant  or  defendants  guilty. 

If  the  jury  believe,  from  the  evidence,  that  the  deceased 
died,  from  "  the  effect  of  what  is  known  as  (svnstrol'e),  and 
that  that  disease  was,  in  a  measure,  caused  by  the  habitual  in- 
toxication of  tlie  deceased,  for  a  considerable  time  befo]  e  his 
death,  still,  the  defendants  would  not  be  liable  for  causing  his 
death,  unless  the  plaintiff  has  proved,  by  a  preponderance  of 
evidence,  that  the  defendants,  or  one  of  them,  furnished  the 
deceased  with  liquors,  which  caused  such  habitual  intoxication, 
in  whole  or  in  part. 


INTOXICATING     LIQUOKS.  277 

§  13.  Verdict  Must  be.  Founded  on  the  Evidence, — In  detei- 
niiniiif^  any  of  the  questions  of  fact  presented  in  this  case,  the 
jury  should  be  govei'ned  solely  by  the  evidence  introduced 
before  them;  the  jury  have  no  right  to  indulge  in  sj^eculations 
or  conjectures,  not  supported  by  the  evidence. 


CHAPTER  XXVI. 
LANDLOED  AND  TENANT. 


Sec.  1.  Relation  of  landlord  and  tenant  must  exist. 

'2.  Occupant  liable  for  rent,  when — lllinoiR!. 

3.  Lease  not  modified  or  surrendered — Suit  for  rent. 

4.  Surrender  of  premises,  how  eflFected. 

5.  Surrender  must  be  assented  to  by  landlord. 

6.  Eviction  stops  the  rent. 

7.  Eviction  from  a  part  of  the  premises. 

8.  Forcible  expulsion  not  necessary. 

9.  Acts  of  trespass,  not  eviction. 

10.  What  is  an  eviction. 

11.  Landlord's  lien  for  rent,  by  statute. 

12.  Levy  of  distress  warrant  not  necessary  to  perfect  lien. 

13.  Lien  against  purchaser  from  tenant,  when. 

14.  Tenant  holding  over,  contract  implied. 

15.  New  contract  implied,  when. 

16.  Contract  not  implied  from  holding  over,  when. 

17.  Wrongful  holding  uver — Illinois. 

18.  Tenant  cannot  deny  landlord's  title. 

19.  Landlord  not  bound  to  repair. 

20.  Title  to  crops. 

21.  Tenant's  right  to  remove  fixtures. 

§  1.  Relation  of  Landlord  and  Tenant  Mast  Exist. — The  jury 
are  instructed,  that  this  is  a  suit  brought  by  the  plaintiff  to 
recover  rent  for  the  use  and  occupation  by  the  defendant  of 
the  premises  in  question,  and  to  entitle  the  plaintiff  to  recover 
the  jury  must  believe,  from  the  evidence,  not  only  that  the 
defendant  occii])ied  the  premises,  as  alleged,  but  that  he  occu- 
pied them  as  the  tenant  of  the  plaintiff. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 
plaintiff  was  the  owner  of  the  proj:)erty  in  question  during  tlie 
time  alleged  and  that  the  defendant  occupied  the  same  during 
etc.,  still  this  would  not  authorize  the  plaintiff"  to  recover 
unless  the  jury  believe,  from  the  evidence,  that  the  defendant 
acknowledged  the  rights  of  the  plaintiff'  in  the  property  and  he 
held  the  same  under  tlie  ]:)laintiff*.     Lochtooocl  vs.  Thunder 

(278) 


LANDLORD     AND     TENANT.  279 

Baij^  etc.^  42  Mich.,  536;  Moses  vs.  Arnold^  43  Iowa,  187; 
JSfoyes  vs.  Loving,  55  Me.,  408;  Cent.  Hills  Co.  vs.  Ilart,  124 
Mass.,  123;  Moore  vs.  Harvey,  50  Yt.,  297;  Gallagher  vs. 
Jlirnilherger,  57  Ind.,  63. 

§  2.  Occupant,  Liable  for  Rent,  When — Illinois. — The  court 
further  instructs  the  jury,  that  under  the  laws  of  this  state,  in 
all  eases  where  lands  belongini^  to  one  person  are  held  and 
occupied  b}^  another,  without  any  special  agreement  for  the 
Irent  of  such  ])reniises,  the  owner  of  the  land  may  sue  for,  and 
recover  as  rent,  a  fair  and  reasonable  satisfaction  for  such  use 
and  occupation  of  his  land. 

The  court  further  instructs  the  jury,  that  if  they  believe, 

from  the  evidence,  that  the  plaintllf,  during  the  year was 

the  owner  of  the  land  for  which  rent  is  claimed  in  this  suit, 
and  that  the  defendant,  during  the  same  year,  used  and  occu- 
pied said  ]U'emises,  by  pasturing  his  cattle  thereon,  without 
any  special  agreement  as  to  the  payment  of  rent,  then  under 
the  laws  of  this  state,  the  plaintifl:  has  the  right  to  recover  in 
this  suit,  what  such  use  and  occupation  was  reasonably  worth, 
under  the  evidence  in  this  case.     R.  S.  111.,  Chap.  SO,  §  1. 

§   3.     Lease  not  Modified  or  Surrendered — Suit  for  Rent. —  The 

court  instructs  the  jury,  that  if  they  believe,  from  the  evidence, 
that  on  or  about,  etc.,  the  plaintiff  and  defendant  entered  into 
a  verbal  contract,  by  which  the  defendant  rented  the  premises 
in  question  of  the  plaintiff  for  the  then  coming  season,  or  for 
the  then  next   year,  and    agreed  to  [xay  as  rent  therefor   the 

sum  of  % ,  and  the  jury  further  believe,  from  the  evidence, 

that  that  contract  has  never  been  modified,  or  rescinded,  by 
any  subsequent  agreement  of  the  parties,  and  that  the  defend- 
ant occupied  the  premises,  under  such  original  contract,  then 
the  plaintiff  will  have  the  right  to  recover  the  amount,  so 
agreed  to  be  paid  as  rent,  from  the  defendant  in  this  action. 

If  the  jury  believe,  from  the  evidence,  that  the  lease  in 
question  was  executed  by  the  i)laintiff'  and  defendant,  and  that 
the  defendant  went  into  the  possession  of  the  premises,  under 
said  lease,  and  also,  that  said  lease  has  never  been  canceled,  or 
surrendered,  by  the  agreement  of  the  parties,  then  the  jury 
should  find  for  the  plaintiff,  for  the  time  during  which  they 


280  LANDLORD     AND     TENANT. 

believ(3,  from  the  evidence,  the  rent  lias  remained  imj.aid,  at 

the  rate   of   S per  year,  unless  the  jury  further  believe, 

from  the  evidence,  that  the  contract  was  subsequently  modi- 
fied, by  agreement    of    the  parties,  and  the  rent  reduced  to 

$ per  year,  in  wliich  case    the  jury  should  calculate  the 

rent  due,  at  the  rate  of  § a^-ear,  since  the  making  of  such 

new  arrangement,  less  the  amount  [laid  thereon,  if  they  find, 
from  the  evidence,  that  any  portion  of  the  rent,  coming  due 
after  that  date,  has  been  paid.  Strobie  vs.  Dills,  62  111.,  432. 
If  the  jury  believe,  from  the  evidence,  tliat  the  plaintiff 
and  defendant  executed  the  lease,  introduced  in  evidence,  and 
that  the  defendant  entered  into  possession  of  the  premises, 
therein  described,  under  such  lease,  then  the  defendant  is 
liable  to  pay  to  the  plaintiff  the  amount  of  the  rent  accrued 
thereon,  up  to  the  day  of,  etc.,  aftei'  deducting  such  payments 
as  the  jury  believe,  from  the  evidence,  have  been  made  there- 
on, unless  the  jury  further  believe,  from  the  evidence,  that 
said  lease  has  been  canceled,  surrendered  or  modified,  by  some 
subsequent  agreement  between  the  parties. 

§  4.  Surrender  of  Premises,  How  Effected. — In  respect  to  the 
alleged  surrender  of  the  premises,  the  court  instructs  the  jury, 
that  a  valid  surrender  of  a  lease,  and  of  the  estate  thereby 
created,  can  only  be  made  by  a  mutual  agreement,  or  assent 
of  the  landlord  and  tenant,  to  that  effect.  Helson  vs.  Thomp- 
son, 23  Minn.,  50S;  Morgan  vs.  Smiih,  70  IS".  Y.,  537;  Ladd 
vs.  Smith,  6  Oreg.,  316. 

§  5.  Surrender  Must  be  Assented  to  by  Landlord. — The  jury 
are  instructed,  that  no  surrender  of  the  premises  in  question, 
by  the  defendant,  could  take  effect  unless  the  jilaintift',  by  him- 
self or  by  some  authorized  agent,  accepted  such  surrender;  and 
although  the  jury  may  believe,  from  the  evidence,  that  the 
defendant  vacated  the  premises  in  controversy,  and  gave  notice 
thereof  to  the  plaintiff,  yet  this  alone  would  not  exonerate 
the  defendant  from  the  payment  of  rent  thereafter,  unless  the 
surrender  was  assented  to  by  the  plaintiff,  as  a  surrender  of  the 
possession  to  him.     Taylor's  Land,  and  Ten.,  §  515. 

The  jury  are  instructed,  that  although  they  may  believe, 
from  the  evidence,  that  the  defendant  moved  away  from  the 


LANDLORD     AND     TENANT.  2S1 

premises  in  question,  and  sent  tlie  keys  of  tlie  building  to 
the  plaintilt',  and  that  the  plaintiff  retained  the  keys,  this  alone 
would  not  constitute  a  surrender  of  the  j)reniises  by  the  de- 
fendant, and  an  acceptance  of  such  surrender  by  the  plaintiff. 
Townsend  vs.  Albert,  3  E.  D.  Smith,  oGU;  Withers  vs.  Larra- 
lee,  48  Me.,  570.  * 

That  to  constitute  a  valid  surrender  of  a  lease,  or  of  leased 
premises,  there  must  be  an  offer  to  surrender  by  the  tenant 
and  such  offer  must  be  accepted  by  the  landlord. 

§  6.  Eviction  Stops  the  Rent. — The  principle  upon  which  a 
tenant  is  required  to  pay  rent,  is  the  benelicial  enjoyment  of 
the  premises  unmolested  in  any  way  by  tlie  landlord;  and  in 
this  case,  if  the  jury  believe,  from  the  evidence,  that  after  de- 
fendant went  into  possession  of  the  premises,  the  plaintiff"  took 
possession' of  any  part  of  the  premises  leased,  against  the  con- 
gent  of  the  defendant,  and  in  such  a  way  as  to  prevent  the  de- 
fendant having  the  beneficial  use  of  all  the  premises  leased, 
this  in  law  is  an  eviction,  and  releases  the  defendant  from  the 
payment  of  any  more  rent  while  such  eviction  continues. 

§  7.  Eviction  from  a  Pai't  of  the  Premises. — Althougli  tlie 
jury  may  believe,  from  the  evidence,  that  the  defendant  has 
never  been  disturbed  in,  or  evicted  fi'om,  the  main  building 
on  tlie  leased  premises,  and  that  he  has  had  the  use  and  enjo}^- 
ment  of  the  same,  still,  if  they  further  believe,  from  the  evi- 
dence, tliat  the  plaintiff  has  taken  possession  of  any  material 
part  of  the  premises  leased  without  the  consent  of  the  defend- 
ant, this  in  law  is  an  eviction,  and  the  defendant  is  not  bound 
to  pay  any  rent,  during  the  time  of  such  eviction,  for  the  part 
of  the  premises  which  he  did  use  and  occupy.  Taylor's  Land. 
&  Ten.,  §  378;  WalJter  vs.  Tucker,  70  111.,  527;  Leiois  vs.  Payii, 
4  Wend.,  423;  Colhurn  vs.  Morrill,  117  Mass.,  262;  Day  vs. 
Watson,  8  Mich.,  535:  Skaggs  vs.  Emerson,  50  Cal.,  3. 

§  8.  Forcible  Expulsion  not  Necessary. — Forcible  expulsion  is 
not  necessary  to  cause  an  eviction;  any  act  done  in  violation 
of  the  rights  of  the  tenant  without  his  consent,  which  de- 
prives him  of  the  beneficial  use  and  enjoyment  of  a  material 
part  of  the  premises  leased,  will  amount  to  an  eviction;  if  the 


2S2  LANDLORD     A>'D     TENANT. 

juiy  in  tills  case  believe,  from  the  evidence,  that  the  plaintiff, 
after  making  the  lease,  -without  the  consent  of  the  defendant, 
took  possession  of  any  material  part  of  the  premises  leased, 
then  the  defendant  is  released  frum  the  payment  of  all  rent 
accruing  after  that  date.     Taylor's  Land,  and  Ten.,  §  3S1. 

If  you  believe,  from  the  evidence  in  this  suit,  that  the 
plaintiff,  after  leasing  the  premises  to  the  defendant,  leased  a 
part  of  said  premises  to  one  II.  W.,  who  has  since  taken  pos- 
session of  the  same  under  the  lease  to  him,  then  in  law  this  is 
an  eviction  from  the  time  the  said  H.  W.  so  took  possession, 
and  the  defendant  is  released  from  the  payment  of  all  rent  ac- 
cruing during  such  eviction.     Smith  vs.  Wiseet  al.,  58  111.,  lil. 

If  you  believe,  from  the  evidence,  that  the  defendant  was 
a  tenant  of  the  premises  at  the  time  in  question,  under  a  lease 
from  the  plaintiff,  and  that  against  defendant's  consent,  and 
without  any  understanding  or  agreement  permitting  it,  the 
plaintiff  tOi>k  possession  of  any  material  part  of  said  premises 
and  evicted  the  defendant  therefrom,  and  prevented  him  from 
using  and  occupying  the  same,  then  such  eviction  worked  an 
extinguishment  of  all  rent  for  the  whole  of  said  premises 
from  the  time  such  eviction  occurred,  notwithstanding  the 
defendant  continued  to  occui)y  a  portion  of  said  premises 
after  that  time.     Price  vs.  P.,  Ft.  W.  d;  C.  By.  Co.,  34  111.,  13. 

§  9.  Acts  of  Trespass  not  Eviction. — The  court  instructs  the 
jury,  that  to  constitute  an  eviction  there  must  be  something 
more  than  a  mere  trespass  by  the  landlord;  there  must  be  some- 
thing of  a  ]iermanent  character  done  by  him.  with  the  intention 
of  depriving  the  tenant  of  the  enjoyment  of  the  ]iremises,  or  of 
some  part  thereof.  The  question  of  eviction  or  no  eviction  is 
a  question  to  be  decided  by  the  jury,  in  view  of  all  the  facts 
and  circumstances  proved  on  the  trial. 

The  jury  are  instructed,  that  while  the  law  is,  that  if  the 
tenant  loses  the  benefit  of  the  enjoyment  of  any  material  \)ov- 
tion  of  the  demised  premises  by  the  willfu'  act  of  the  landlord, 
the  rent  is  thereby  suspended,  yet  to  have  this  effect  the  act 
of  the  landlord  must  be  something  more  than  a  mere  trespass; 
it  must  be  something  of  a  permanent  character,  and  have  the 
effect  of  dei)riving  the  tenant  of  the  enjoyment  of  the  ]»rem- 
ises  from  which  the  eviction  is  alleged.  Taylor's  Land,  and 
Ten.,  §  380;  Lynch  v.  Baldtoin,  69  111.,  210. 


LANDLOKD     AND     TENANT.  283 

§  10.  AVliat  Constitutes  Eviction. — The  court  instructs  the 
jury,  that  some  acts  of  interference  by  the  landlord  with  the 
tenant's  enjoyment  of  the  premises  may  be  mere  acts  of  tres- 
pass, or  they  may  amount  to  an  eviction.  The  question 
whether  they  ])artake  of  the  latter  character  depends  upon  the 
intention  with  which  they  are  done,  and  the  character  of  the 
acts.  If  they  clearly  indicate  an  intention  on  the  landlord's 
part  that  the  tenant  should  no  longer  continue  to  hold  the 
premises,  and  he  thereby  lose?  the  beneficial  use  of  the  same, 
this  would  constitute  an  eviction;  otherwise  they,  would 
amount  to  no  more  than  acts  of  trespass.  Haynes  et  al.  vs. 
Sjnith,  63  111.,  430;  Taylor's  Land,  and  Ten.,  §  380;  Mijers  vs. 
Gemmel,  10  Barb.,  537;  Ilazlett  vs.  Powell,  30  Penn.  St.,  293; 
Mirick  vs.  Hoppin,  118  Mass.,  582. 

To  constitute  an  eviction  the  acts  of  interference  by  the 
landlord  with  the  tenant's  possession  must  clearly  indicate  an 
intention,  on  the  part  of  the  landlord,  that  the  tenant  shall  no 
longer  continue  to  hold  the  premises,  or  some  material  part 
thereof.     Ilon'lss  vs.  Tlllson,  81  111.,  607. 

§  11.  Landlord's  Lien  for  Rent — By  Statute. — The  jury  are 
instructed,  that  the  statute  of  this  state  gives  a  landlord  a  lien 
upon  the  crops  grown  or  growing  upon  the  demised  premises, 
in  any  year,  for  the  rent  that  shall  accrue  for  that  year, 
whether  the  rent  be  payable  in  money,  labor,  or  a  share  of  the 
crops  raised;  and  this  lien  is  not  confined  to  any  particular 
crop,  but  embraces  all  the  crops,  or  any  portion  of  them,  no 
matter  upon  which  particular  part  of  the  premises  they  were 
raised,     Thomp'^ori  vs.  Mead,  67  111.,  395. 

Under  our  statute  the  landlord  has  a  lien  upon  the  crops 
grown  and  growing  upon  the  demised  premises,  in  any  year, 
for  the  rent  thereof  for  that  year,  and  such  lien  continues  for 
the  period  of  six  months  after  the  expiration  of  the  term  for 
whicli  the  premises  were  rented,  and  no  levy  of  the  crops  thus 
grown,  or  sale,  under  an  execution  against  the  tenant,  will 
divest  tlie  landlord  of  such  lien.     Miles  vs.  James,  36  111.,  399. 

The  law  of  this  state  gives  a  landlord  a  lien  upon  the  crops 
grown  or  growing  upon  the  premises,  in  any  one  year,  for  the 
rent  thereof  for  that  year,  and  it  does  not  matter  whether 
the  crops  are  raised  by  the  tenant  to  whom  the  premises  were 


2S4:  LANDLORD     AND     TENANT. 

leased  by  the  landlord  in  the  first  instance,  or  whether  they 
were  raised  by  a  sub-tenant  under  such  prior  lease.  U/il  vs. 
Digliton,  25  111.,  154. 

§   12.     Levy  of  Distress  Warrant  not  Necessary  to  Perfect  Lien. 

— The  court  instructs  the  jury,  that  the  law  gives  the  landlord 
a  lien  upon  the  crops  grown  or  growing  upon  the  rented  prem- 
ises, in  any  one  year,  for  the  rent  of  that  year;  that  such  lien 
does  not  depend  upon  the  levy  of  any  distress  warrant,  but  is 
given  by  the  statute,  and  no  creditor  of  the  tenant  can  defeat 
the  landlord's  lien  by  levying  an  attachment  or  an  execution 
upon  the  property  before  the  issuing  of  a  distress  warrant  by 
the  landlord.     Mead  vs.  Thomjpson^  78  111.,  62. 

§  13.  Lien  against  Purchaser  from  Tenant,  AVhen. —  That  a 
purchaser  of  grain  raised  by  a  tenant,  upon  which  the  landlord 
lias  a  lien  for  rent,  with  full  knowledge  of  that  fact,  and  that 
the  rent  is  not  fully  paid,  wall  be  liable  to  the  landlord  for  the 
rent  due  to  the  extent  of  the  value  of  the  grain  purchased  by 
him. 

The  court  instructs  the  jury,  that  the  lien  given  to  a  land- 
lord upon  the  crops  grown  or  growing  upon  the  demised 
premises,  in  any  one  year,  for  the  rent  of  that  year,  cannot  be 
defeated  by  a  sal<^.  of  such  crop,  or  any  portion  of  it,  by  the 
tenant  to  a  person  who  has  notice  of  the  fact  of  the  tenancy, 
and  that  the  crop  was  raised  on  the  premises  rented. 

And  when  a  purchaser  of  corn  from  a  tenant  knows  of  the 
fact  of  tenancy,  and  that  his  vendor,  as  such  tenant,  had  raised 
the  corn  on  the  demised  premises,  this  will  be  notice  to  him 
of  any  lien  the  landlord  may  have  upon  the  same  for  unpaid 
rent.      Watt  vs.  Scofield,  76  111.,  261. 

The  court  instructs  the  jury,  that  if  they  believe,  from  the 
evidence,  that  when  the  defendant  purchased  the  grain  in 
question  he  knew  that  A.  B.  rented  from  the  plaintiff  the  land 
M'hereon  the  grain  was  raised,  and  that  he  neglected  and  failed 
to  inquire  into  the  facts  regarding  the  plaintiff's  lien  thereon, 
to  the  extent  that  a  reasonably  prudent  man  should  have  done 
under  the  circumstances  proved,  then  the  jury  should  find  for 
the  plaintiff.     Prettyman  vs.   Unland,  11  111.,  206. 

§   14.     Tenant    Holding    Over — Contract    Implied. — The  court 


LANDLORD     AKD    TENANT.  285 

instructs  the  jury,  that  when  a  tenant  holds  over  after  the  ex- 
piration of  his  term.  Avith  the  assent  of  the  landlord,  expressed 
or  implied,  if  there  is  no  special  agreement  to  the  contrary, 
it  will  be  upon  an  implied  agreement  or  liability  to  pay  rent 
thoroafter  on  the  same  terms  as  to  amount  and  times  of 
payment  as  were  provided  in  the  original  lease.  Taylor's 
Lmd.  and  Ten.,  §  525;  Glapp  vs.  Noble,  84  III.,  '62;  Weston 
vs.  Weston^  102  Mass.,  514;  Sckuyler  vs.  Smith,  51  N.  7.,  309; 
Bacon  vs.  Brown,  9  Conn.,  331;  Finney  vs.  St.  Louis  et  al., 
39  Mo.,  177. 

When  a  person  rents  property  for  a  definite  period  of  time, 
as  for  a  year,  and  the  tenant  remains  in  ])Ossession  of  the 
premises,  holding  over  after  the  expiration  of  the  term  for 
which  the  ]iroperty  was  rented,  and  after  a  reasonable  time  for 
surrendering  np  the  possession,  with  the  consent  of  the  land- 
lord, expressed  or  implied,  but  without  any  new  agreement, 
the  law  will  imply  a  new  leasing  for  the  same  length  of  time 
as  the  original  leasing  and  upon  the  same  terms. 

In  this  ca^e,  if  you  believe,  from  the  evidence,  that  some 
time,  or  about,  etc.,  the  defendant  leased  the  premises  in  ques- 
tion for  the  then  next  ensuing  season  {or  year),  agreeing  to  pay 

therefor  the  sum  of  § ;  and  if  you  further  believe,  from 

the  evidence,  that  after  the  expiration  of  that  lease  the  defend- 
ant went  on  in  the  use  and  occupation  of  the  premises,  in  the 
same  manner  as  he  had  used  them  under  the  lease,  with  the 
consent  of  the  plaintiff,  but  without  any  new  contract  between 
the  parties,  until  the  month  of,  etc.,  then  the  law  would  imply 

a  new  renting  for  the  season  {or  year)  of ,  upon  the  same 

terms  as  the  original  renting. 

Where  a  tenant  ho-ds  over  after  the  expiration  of  his  lease, 
a  continuance  of  the  tenancy  on  the  same  terms  will  be  pre- 
sumed against  him;  and  where  a  tenant,  from  year  to  year, 
continues  to  occupy  and  enters  upon  another  year,  with  the 
knowledge  of  the  landlord,  without  objection  from  him,  a  ten- 
ancy for  another  year  is  thus  created,  upon  the  same  terms 
and  conditions  as  those  of  the  year  before. 

§  15.  New  Contract  Implied,  When. — That  when  a  tenant, 
under  a  lease  from  year  to  year,  is  notified  by  his  landlord, 
before   the  expiration  of   his   term,  that   if   he  occupies   the 


286  LANDLORD     AND     TENANT. 

premises  another  year  he  will  ha%'e  to  pay  a  certain  increased 
rent,  and  the  tenant  holds  over  without  any  further  contract 
or  understanding  between  the  parties,  such  act  of  holding  over 
will  be  construed  as  an  implied  agreement  that  he  will  hold 
the  premises  upon  the  new  terms  imposed.  Desjpard  vs. 
Walhridge,  15  K  T.,  374;  Ilhjglns  vs.  Halligan,  46  111.,  173; 
Hunt  vs.  Bailey,  39  Mo.,  257. 

§  16.     When  Contract  not  Implied    from  Holfling  Over. — If  the 

jury  believe,  from  the  evidence,  that  tlie  plaintiff  never  con- 
sented to  remain  in  the  ]iromisesfor  any  term  after  the  expira- 
tion of  his  lease,  but  merely  held  over  for  six  or  seven  days, 
and  then  moved  out,  and  never  paid  any  rent  after  the 
expiration  of  his  lease,  nor  did  anything  indicating  any  inten- 
tion to  stay  in  the  premises  for  any  further  term  after  such 
expiration,  then  he  is  only  liable  to  pay  the  rent  for  the  time 
he  did  stay  in  the  premises. 

The  jury  are  instructed,  as  a  matter  of  law,  that  where  a 
tenant  occupies  premises  under  a  lease  for  a  year  or  years  and 
holds  over  after  the  expiration  of  the  lease  without  making 
any  new  arrangement  with  the  landlord,  regarding  such  hold- 
ing over,  then  the  tenant  may,  at  the  election  of  the  landlord, 
be  treated  as  a  tenant  for  another  year  upon  the  terms  of  the 
original  lease.  Whether  in  this  case  the  defendant  did  hold 
over  after  the  termination  of  his  lease,  and  if  he  did,  whether 
such  holding  over  was  with  the  consent  of  the  plaintiff,  or 
under  any  new  arrangement  between  the  parties,  are  all  ques- 
tions of  fact  to  be  determined  by  the  jury  from  the  evidence 
in  the  case. 

The  jury  are  instructed,  that  the  mere  holding  over  by  a 
tenant  after  the  exjDiration  of  his  lea^^e  without  any  new 
arrangement  or  agreement  with  his  landlord,  is  not  of  itself 
sufficient  to  create  a  new  tenancy  from  year  to  year,  but  in 
snch  case,  if  the  landlord  elects  to  consider  such  holding  over 
a  renewal  of  the  tenancy,  it  will  in  law  amount  to  such  re- 
newal. But  whether  in  this  case,  etc.  (as  in  last  instruction 
to  the  end). 

§  17.  Wrongful  Holding  Over — Illinois. — The  court  instructs 
the  jury,  that  when  a  lease  has  expired  by  its  terms  and  the 


LANDLOKD     AND     TENANT.  287 

tenant  holds  over,  sueli  holding,  though  intentional,  is  not  with- 
in the  statute  imjiosing  the  j^enalt}'  of  double  rent,  unless  snch 
holding  over  is  knowingly  and  willful!}'  wrongful.  When  a 
tenant  continues  to  hold  over,  after  the  expiration  of  his  lease, 
under  a  reasonable  belief  that  he  was  doing  so  rightfully,  he  does 
not  incur  the  penalty  of  donl:)le  rent  for  holding  over. 

That  the  question  whether  the  defendant  wrongfully  held 
over  the  possession  of  the  premises  after  the  expiration  of  his 
lease,  is  a  question  of  fact  to  be  determined  by  the  jury,  from 
all  the  evidence  in  the  case  ;  and  though  the  jury  may  believe, 
from  the  evidence,  that  the  defendant  did  hold  over  wrong- 
fully, still  if  they  further  believe,  from  the  evidence,  that  the 
defendant  had  reasonable  grounds  for  believing,  and  did  be- 
lieve, he  had  a  right  to  hold  over,  then  he  would  not  be  liable 
to  the  penalty  of  paying  double  rent  for  the  premises.  Stewart 
vs.  HaTnilton,  66  111.,  255. 

§  18.  Tenant  Cannot  Deny  Landloi'd's  Title. — ^The  court  in- 
structs the  jury,  as  a  matter  of  law,  that  a  tenant  is  not  per- 
mitted to  deny  the  title  of  his  landlord  to  the  premises  leased 
nor  the  title  of  those  who  hold  under  the  landlord.  And  in 
this  case,  if  the  jury  believe,  from  the  evidence,  that  the  de- 
fendant leased  the  ])romises  in  question  from  the  mother  of 
the  plaintiff,  and  took  possession  of  the  same  under  such  lease, 
and  has  not  since  surrendered  u])  such  ]iossession,  then,  if  the 
jury  further  believe,  from  the  evidence,  that  the  mother  of 
plaintiff  is  dead,  and  that  she  willed  the  premises  to  the  plaint- 
iff, as  claimsd,  then  the  defendant  is  not  i')ermitted  to  deny 
the  plaintiff's  title,  so  long  as  the  defendant  remains  in  such 
possession. 

§  19.  Landlord  not  Bonnd  to  Repair. ^ — The  jury  are  instruct- 
ed, that  under  the  lease  introduced  in  evidence  the  landlord 
was  under  no  obligation  to  make  repairs  on  the  premises,  or  to 
p^y  for  any  made  by  defendant;  and  unless  the  jury  believe, 
from  the  evidence,  that  some  subsequent  agreement  or  arrange- 
ment has  been  made  by  the  parties,  by  which  the  ])laintiff  has 
agreed  to  make  such  repairs,  or  to  pay  for  those  made  by  de- 
fendant, then,  as  to  the  question  of  repairs,  the  jury  should 
find  for  the  plaintiff. 


288  LAKDLOKD     AKD     TE^■AXT. 

That  without  some  express  agreement  to  that  effect,  a  land- 
lord is  under  no  obligation  to  make  rej^airs  on  the  premises 
during  the  time  for  which  thej  are  leased.  Taylor's  Land, 
and  Ten.,  §  327. 

§  20.  Title  to  Crops. — The  title  to  the  crop  raised  on  rented 
land  is  not  in  the  landlord,  so  as  to  empower  him  to  sue  for 
and  recover  upon  it  in  trespass,  or  its  value  in  trover.  He  has 
a  special  lien  upon  it  given  by  statute,  which  maybe  enforced 
by  distress  for  rent.     Morrill  vs.  Barnes,  5T  Ga.,  404. 

The  law  is,  in  the  case  of  a  leasing  of  land  for  a  share  of  the 
crops  raised,  to  be  divided  after  they  are  raised  and  gathered, 
that  the  title  to  the  whole  of  the  crop  will  be  and  remain  in 
the  tenant,  until  the  crop  has  been  divided  and  possession 
given  to  the  landlord  of  his  share.  Sargent  vs.  Courrier,  QQ 
111.,  24.5;  Townsend  vs.  Is^'^herger,  45  la.,  670. 

In  farming  on  shares,  the  tenant,  as  against  the  landlord,  is 
entitled  to  the  possession  of  the  whole  crop  while  it  is  grow- 
ing, and  may  recover  damages  from  the  landlord  if  the  cattle 
of  the  latter  wrongfully  break  into  the  lield  and  injure  the 
crop.     Front  vs.  Hardin^  56  Ind.,  165. 

Note. — It  seems,  the  tenant,  fanning  land  on  shares,  cannot  sue  the  land- 
lord in  trespass  to  recover  for  injury  done  to  the  growing  crop  by  live  stock 
belonging  to  the  landlord,  for  the  parties  are  co-tenants  of  the  property. 
Wells  vs.  HoUeiibeck,  37  Mich.,  504. 

§  21.  Tenant's  Right  to  Remove  Fixtures. — If  the  jury  believe, 
from  the  evidence,  that  the  defendant,  while  occupying  the 
])remises  in  question  under  a  lease  from  the  plaintiff,  erected 
the  (cj'ibs)  in  controversy  for  his  own  use  and  benetit  while  he 
should  occupy  the  farm  and  without  any  agreement  or  under- 
standing with  the  plaintiff  that  they  should  be  left  on  the 
))lace,  then  the  defendant  had  a  right  to  take  down  and  remove 
the  cribs  at  any  time  before  or  at  the  expiration  of  his  lease. 

If  the  defendant  leased  the  storeroom  in  question  of  the 
plaintiff  for  the  period  of,  etc.,  and  afterwards,  for  his  own  use 
and  benefit,  placed  the  (counters)  in  controversy  in  the  build- 
ing with  the  intention  of  removing  the  same  at  the  expiration 
of  his  lease,  and  without  any  agreement  or  understanding  witli 
the  yjlaintiff  that  they  would  be  left  in  the  builcling,  then  the 
de  endant  had  the  right,  etc. 


LANDLORD    AND    TENANT.  2S9 

Tbe  Jury  are  instructed,  as  a  matter  of  law,  that  a  tenant's 
right  to  remove  a  building  or  other  improvement  placed  on 
leased  land  is  restricted  to  the  duration  of  his  tenancy.  If  not 
removed  before  the  tenant  abandons  the  premises  the  build- 
ing or  other  improvement  becomes  a  part  of  the  freehold  and 
belongs  to  the  owner  of  the  land.  Griffin  vs.  Ransdell^  71 
Ind.,  440 ;  Watriss  vs.  Cambridge  Bank,  124  Mass.,  571 ;  Mer- 
ritt  vs.  Judd,  14  Cal.,  59 ;  Ewell  on  Fixtures,  143. 

If  a  tenant  omit  to  remove  fixtures  placed  by  him  on  the 
leased  premises,  until  after  his  right  to  use  and  occupy  the 
premises  has  expired,  and  his  possession  has  become  wrong- 
ful, then  he  is  deemed  to  have  abandoned  his  right  of  re- 
moval, and,  if  he  afterwards  remove  them,  he  is  a  trespasser. 
Cromie  vs.  Hoover,  40  Ind.,  49. 
19 


CHAPTER  XXVII. 
LIMITATIONS. 


Sec.    1.  Statute  a  bar,  when. 

2.  Payment,  a  new  promise. 

3.  When  the  statute  begins  to  run. 

4.  Running  accounts. 

5.  Absence  from  the  State, 

6.  Debt  revived  by  new  promise. 

7.  ]\Iust  be  a  promise  to  pay  the  debt. 

8.  What  amounts  to  a  promise. 

9.  What  is  not  a  promise. 
10.  Fraud  and  deceit. 

§  1.  Statute  a  Bar,  When. — The  court  instructs  the  jury, 
that  in  cases  like  the  one  on  trial,  unless  the  suit  is  commenced 
within  {five)  years  after  the  cause  of  action  accrues,  then  the 
statute  of  limitations  is  a  complete  bar.  And,  in  this  case,  if 
the  jury  believe,  from  the  evidence,  that  suit  was  not  com- 
menced within  {five)  years  after  the  cause  of  action  accrued, 
that  is  within  {five)  years  after  the  debt  sued  for  became  due, 
tlien  the  statute  of  limitations  is  a  complete  bar  to  this  suit, 
and  the  jury  must  find  for  the  defendant;  unless  the  jury 
further  believe,  from  the  evidence,  that  the  defendant  has 
made  a  new  promise  to  pay  the  debt  within  {five)  years  of  the 
commencement  of  the  suit. 

§  2.  Payment  a  New  Promise. — If  the  jury  believe,  from 
the  evidence,  that  prior  to  the  spring  of,  etc.,  there  has  been  a 
running  account  between  the  plaintiff  and  defendant,  and  that 
at  that  time  the  defendant  made  a  payment  to  the  plaintiff 
upon  that  account  generally,  then  a  suit  by  either  ])arty  for 
any  balance  claimed  to  be  due  on  such  account  could  have 
been  brought  by  such  party  at  any  time  within  {five)  years 
from  the  date  of  such  payment. 

§  3.     When  the  Statute  Begins  to  Run. — As  regards  the  de- 

(290) 


LIMITATIONS.  291 

fense  of  the  statute  of  limitations  interposed  in  tliiscase,  the  J1117 
are  instructed,  that  if  one  person  gives  credit  to  another  until 
he  gets  into  a  certain  condition  financially,  or  until  the  happen- 
ing of  a  certain  event  or  contingency,  then  a  cause  of  action 
will  not  arise  until  the  party  gets  into  such  financial  condition, 
or  until  such  event  or  contingency  has  happened ;  and  the 
statute  of  limitations  does  not  begin  to  run  until  the  cause  of 
action  has  arisen,  that  is,  until  a  suit  could  be  brought  for  the 
debt.  2  Par.  on  Cont.,  370 ;  See  Bradly  vs.  Cole,  25  K  W. 
Rep.,  851,  note. 

You  are  instructed,  that  the  statute  of  limitations  does  not 
begin  to  run,  in  any  case,  till  the  cause  of  action  has  accrued ; 
that  is,  not  till  the  party  has  a  right  to  sue  and  recover  on  the 
demand;  and  when  a  credit  has  been  given,  the  statute  does 
not  begin  to  run  till  the  credit  has  expired. 

And,  in  this  case,  if  you  believe,  from  the  evidence,  that 
any  credit  was  given  by  plaintiff  to  defendant,  then  the  {five) 
years'  limitation  did  not  begin  to  run  until  the  expiration  of 
that  credit. 

§  4.  Running  Accounts. — The  court  instructs  the  jury,  as 
a  matter  of  law,  that  in  the  case  of  running  accounts  between 
]iarties,  the  date  of  the  last  transaction,  which  was  properly 
the  subject  matter  of  entry  in  sucii  account,  or  the  date  when 
such  item  became  payable,  is  the  time  at  which  the  right  of 
action  accrues  for  the  recovery,  by  either  party,  of  any  balance 
remaining  due  on  such  accounts.  Bradly  vs.  Cole,  25  N.  W. 
Rep.  852,  note. 

If  there  be  mutual  running  accounts  between  parties,  and 
there  is  any  item  for  which  a  credit  or  a  charge  could  be 
pro|)erly  made  within  {five^  years  before  bringing  suit,  or 
where  a  payment  has  been  made  by  one  of  the  parties  upon 
the  account  within  {^five^  years,  such  credit,  charge  or  pay- 
ment is  evidence  of  a  promise  implied  by  law  to  pay  thj 
balance  of  such  account.  And,  in  such  case,  a  suit  for  such  bal- 
ance, if  brought  witliin  {^five)  years  after  such  credit,  charge  or 
payment,  is  not  barred  by  the  statute  of  limitations.  BuTch 
vs.    Woodworth,  36  K  W.  Rep.  721. 

If  you  believe,  from  the  evidence,  that  there  are  mutual 
running  accounts  between   the  parties,  and   involved   in  this 


292  LIMITATIONS. 

suit,  and  that  any  items  thereof  were  created  in  favor  of  the 
respective  parties  witliin  i^fivi)  years  prior  to  the  commence- 
ment of  this  suit,  then  the  statute  of  limitations  should  not 
be  allowed  as  a  bar  against  any  part  of  such  accounts,  whether 
for  plaintifl:  or  defendant.  And,  in  such  case,  it  is  immaterial 
whether  such  demands,  or  any  part  thereof,  consist  of  book 
accounts,  or  rest  merely  in  memory;  neitlier  is  it  material,  in 
such  case,  whether  any  or  all  of  such  demands  consist  of 
money  loaned,  goods  furnished,  labor  performed,  or  for  board 
or  rent.  In  either  case  tlie  whole  of  such  accounts  should  be 
taken  into  consideration  by  the  jury,  without  reference  to  the 
statute  of  limitations.  Angell  on  Lim.,  §  147;  2  Greenleaf 
Ev.,  §  445;  Ilannon  vs.  £ngleman,  5  N.  W.  Kep.  791. 

§  5.  Absence  from  the  State. — The  jury  are  instructed,  that 
if  a  party  be  out  of  the  state,  so  that  process  cannot  be  served 
.on  him  at  the  time  the  cause  of  action  accrues,  then  the 
statute  does  not  commence  to  run  until  he  returns  witliin  the 
state  again;  and,  in  such  case,  it  is  not  necessary  that  the  party 
should  absolutely  remove  from  the  state,  without  an  intention 
of  returning.  Any  absence  from  the  state,  when  the  cause  of 
action  accrues,  suspends  the  operation  of  the  statute  for  the 
time  being. 

You  are  instructed,  that  if  a  party  is  residing  within  this 
state  when  the  cause  of  action  against  him  accrues,  then,  in 
order  that  his  absence  from  the  state  shall  suspend  the  opera- 
tion of  the  statute,  it  must  appear  not  only  that  he  has  left 
the  state,  but  also  that  he  resides  out  of  the  state.  {111. 
Statute.)     Bradlij  vs.  Cole,  25  K.  W.  Rep.  857,  note. 

§  6.  Debt  Revived  by  New  Promise. — The  jury  arc  instructed, 
that  where  there  has  once  been  a  legal  obligation  to  pay,  and 
it  has  become  barred  by  the  statute  of  limitations,  the  moral 
obligation  to  pay  the  debt  is  a  sufficient  considei-ation  to  sup- 
port a  subsequent  promise  to  pay;  and  in  this  case,  though  the 
jury  may  find,  from  the  evidence,  as  to  any  of  the  plaintiff's 
demands,  that  the  same  were  once  due  from  the  defendant, 
but  that  the  cause  of  action  accrued  more  than  {five)  years 
prior  to  the  commencement  of  this  suit,  yet,  if  the  jury 
further  find,  from  the  evidence,  that  the  defendant  has,  within 


LIMITATIONS.  293 

tLe  siild  period  of  {ji^^e)  years,  promised  the  plaintiff  to  pay 
such  debt,  then,  as  to  snch  demand,  the  jury  should  find  for 
the  plaintiff.     Bradly  vs.  Cole,  25  N.  W.  Eep.,  857,  note. 

§  7.     The  Promise  Must  be  a  Promise  to  Pay  the  Debt. —  The 

jury  are  instructed,  tliat  when  a  new  promise  is  relied  upon  to 
take  a  case  out  of  the  statute  of  limitation,  the  promise  must 
be  a  promise  to  pay  the  debt.  The  word  promise  need  not  be 
used,  but  there  must  be  language  used  from  which  a  promise 
may  be  fairly  implied. 

§  8.  What  Amounts  to  a  Promise. — If  the  jury  believe,  from 
the  evidence,  that  the  defendant,  upon  the  occasion  when  the 
new  promise  is  claimed  to  have  been  made,  said  to  the  plaint- 
iff, ("/  know  the  deht  is  due,  and  ought  to  le paid,''''')  this  lan- 
guage would  authorize  the  jui-y  to  infer  a  promise  to  pay  the 
debt. 

§  9.  What  is  Not  a  Promise. — If  the  jury  believe,  from  the 
evidence,  that  upon  the  occasion  referred  to  by  the  witnesses, 
the  defendant  said,  {''■that  account  is  correct,^^)  or,  {^'^  I  received 
the  money, ^^)  or  ("/  had.  the  goods,^^)  or  ("  that  is  my  note,^^) 
this  would  not  alone  amount  to  a  promise  to  pay  the  debt. 
Ayers  vs.  R'lchards,  12  111.,  146. 

§  10.  Fraud  and  Deceit. — The  court  instructs  the  jury,  that 
in  the  case  of  a  claim  or  demand  founded  on  fraud  and  deceit, 
the  statute  of  limitation  does  not  begin  to  run  until  after  the 
fraud  and  deceit  are  discovered  by  the  injured  party.  Mc- 
Alpine  WQ.  Hedges,  21  Fed.  Ke p.,  689;  Odell  y&.  Burnham, 
01  Wis.,  562;  Parker  vs.  Kahn,  21  N.  W.  Eep.,  74. 

Though  you  may  believe,  from  the  evidence,  tliat  a  fraud 
was  practiced  upon  the  plaintiff  in  manner  and  form  as  charged 
in  his  declaration,  still,  if  you  further  believe,  from  the  evi- 
dence, that  the  plaintiff  discovered  the  fraud,  or  by  the  use  of 
reasonable  care  and  diligence  could  have  discovered  it,  more 
than  [five)  years  prior  to  the  commencement  of  this  suit,  then 
the  statute  of  limitations  constitutes  a  bar  to  the  plaintiff's 
right  to  recover,  and  you  should  find  for  the  defendant. 

If  you  believe,  from  the  evidence,  that  a  fraud  was  prac- 


294  LIMITATIONS. 

ticed  upon  the  plaintiff,  as  charged  in  his  declaration,  still,  if 
you  further  believe,  from  the  evidence,  that  it  was  done  more 
than  {five)  years  prior  to  the  commencement  of  this  suit,  then, 
under  the  pleadings  in  this  case,  the  statute  of  limitations  bars 
the  plaintiff's  right  of  recovery  against  the  defendant. 


CHAPTER  XXVIII. 

MALICIOUS  PROSECUTIO:^^. 


Sec.     1.  What  must  be  proved. 

2.  Charge  must  be  willfully  false. 

3.  What  is  probable  cause. 

4.  Arrest  without  probable  cause. 

5.  Malice  may  be  inferred  from  want  of  probable  cause. 

6.  Burden  of  proof  on  the  plaintiff. 

7.  What  is  a  want  of  probable  cause. 

8.  Want  of  probable  cause  cannot  be  inferred  from  malice. 

9.  Not  necessary  that  a  crime  should  have  been  committed. 

10.  The  prosecution  must  be  ended. 

11.  Discharge  by  the  justice. 

12.  Advice  of  counsel. 

13.  Presumption  from  good  character. 

§  1.  What  Must  be  Proved. — The  court  instructs  tlie  jury, 
that  if  they  believe,  from  the  evidence,  that  the  defendant 
maliciously  caused  the  arrest  and  imprisonment  of  the  plaint- 
iff, without  probable  cause,  as  alleged  in  the  declaration,  then 
the  jury  should  find  for  the  plaintiff,  and  assess  his  damages 
at  what  they  think  proper,  from  the  facts  and  circumstances 
proved,  not  exceeding,  however,  the  amount  claimed  in  the 
declaration. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
had  probable  cause  to  believe  that  the  plaintiff  was  guilty  of 
the  offense  charged  against  him,  then  it  is  not  material  whether 
tlie  defendant  was  actuated  by  proper  or  improper  motives  in 
instituting  the  criminal  proceedings  against  the  plaintiff.  To 
authorize  a  recovery  in  this  class  of  cases  it  must  not  only 
appear  that  the  defendant  was  actuated  by  malice,  but  the  jury 
must  further  believe,  from  the  testimony,  that  tlie  defendant 
hflid  no  probable  cause,  or  no  reasonable  ground,  to  believe 
that  the  plaintiff  was  guilty  of  the  offense  charged  against 
liim.  And  the  court  furtlier  instructs  the  jury,  that  probable 
cause  means  a  reasonable  ground  of  suspicion,  supported  by 
circumstances  in  themselves  sufficiently  strong  to  warrant  a 

(295) 


296  MALICIOUS    PKOSECUTION. 

reasonably  cautious  man  in  the  belief  that  the  person  accused 
is  guilty  of  the  offense  charged,  Ames  vs.  Snider^  69  111., 
376;  FlicMnger  vs.  Wagyier,  46  Md.,  5S0;  Josselyn  vs.  McAl- 
lister, 22  Mich.,  300;  Carey  vs.  Sheets,  67  Ind.,  375. 

The  court  instructs  the  jury,  that  want  of  probable  cause, 
though  negative  in  its  character,  must  be  shown  by  the  plaint- 
iff, by  affirmative  evidence,  and  the  jury  have  no  right  to  infer 
it  from  any  degree  of  malice  which  may  be  proved.  Brown 
vs.  Smith,  83  111.,  291;  Cottrell  vs.  Richmond,  5  Mo.  App., 
588;  Lavender  vs.  Hodgins,  23  Ark.,  763;  Smith  vs.  Zeyit,  59 
Ind.,  362;  Evens  vs.  Thompson,  12  Heisk.,  534. 

§  2.  Charge  must  be  Willfully  False. — To  sustain  the  charge 
of  malice,  the  criminal  charge  must  appear,  by  a  preponder- 
ance of  the  evidence,  to  have  been  willfully  false.  To  sustain 
a  suit  for  malicious  prosecution,  the  facts  onglit  to  be  such  as 
to  satisfy  any  unprejudiced,  reasonable  mind  that  the  accused 
had  no  ground  for  the  prosecution,  except  his  desire  to  injure 
the  accused.     Ilarjyham  vs.  Whitney,  77  111.,  32. 

§  3.  "VMiat  is  Probable  Cause. — That  to  constitute  probable 
cause  for  a  criminal  prosecution,  there  must  be  such  reasona- 
ble grounds  of  suspicion,  supported  by  circumstances,  sutii- 
ciently  strong  in  themselves,  to  warrant  an  ordinarily  cautious 
man  in  the  belief  that  the  person  arrested  is  guilty  of  the 
offense  charged.  Cooley  on  Torts,  181;  Farnam  vs.  teeley, 
56  K  Y.,  451;  Wineliddle  vs.  PorterfieU,  9  Penn.  St.,  137; 
Collins  vs.  Hayte,  50  111.,  353;  Fagnan  vs.  Knox,  ^^  N.  Y., 
525. 

Upon  the  question,  whether  the  defendant  had  probable 
cause  for  commencing,  etc.,  the  jury  are  instructed,  that  the 
true  inquiry  for  them  to  answer  is  not  what  were  the  actual 
facts  as  to  the  guilt  or  innocence  of  the  plaintiff,  but  what  did 
the  defendant  have  reason  to  believe,  and  what  did  he  believe  in 
reference  thereto,  at  the  time  he  made  the  complaint.  Gal- 
loway  vs.  Burr  et  at.,  32  Mich.,  332. 

The  jury  are  instructed,  that  a  mere  belief  that  an  innocent 
man  is  guilty  of  a  crime,  is  not  alone  suflScient  to  justify  caus- 
ing his  arrest — the  facts  must  be  such  as  would  justify  an  ordi- 
narily intelligent  and  a  reasonably  prudent  person  in  entertain- 


MALICIOUS    PROSECUTION.  297 

ing  sncli  belief.  Wliether,  in  tiiis  case,  such  facts  had  come 
to  the  knowledge  of  the  defendant  at  the  time  he  entered  the 
complaint  against  the  plaintiff,  is  a  question  of  fact  for  the 
jury  to  determine  from  a  preponderance  of  evidence.  Haijs 
y^^ Blizzard,  30  Ind.,  457. 

The  jury  are  instructed,  that  in  determining  whether  the  de- 
fendant had  probable  cause  to  believe  that  the  plaintiff  was 
guilty,  etc.,  they  should  consider  that  question  in  reference  to 
the  facts  and  circumstances  relating  thereto,  and  whicli  influ- 
enced him  in  commencing  proceedings  against  the  plaintiff,  as 
they  were  known  or  as  they  reasonably  appeared  to  be  at  the 
time  he  made  the  complaint,  and  not  by  the  facts  an  1  circum- 
stances as  they  have  been  developed  by  the  evidence  on  this 
trial.     Scott  vs.  SJieler,  28  Gratt,  891. 

If  you  believe,  from  the  evidence,  that  defendant  had  prob- 
able cause  to  institute  the  criminal  proceedings,  then  the 
plaintiff  cannot  recover  in  this  suit;  and  probable  cause  is 
deiined  to  be  reasonable  ground  for  suspicion,  supported  by 
circumstances  sufficiently  strong  themselves  to  warrant  an  im- 
partial and  reasonably  cautious  man  in  the  belief  that  the  pei*- 
son  accused  is  guilty  of  the  offense  with  wliich  he  is  charged. 
Smith  vs.  Zent,  58  Ind.,  362. 

Probable  cause  for  instituting  a  criminal  prosecution  is  a 
reasonable  ground  of  suspicion,  supported  by  circumstances 
sufficiently  strong  in  themselves  to  warrant  a  cautious  man  in 
the  belief  that  the  person  accused  is  guilty  of  the  offense 
charged.  Galloway  vs.  Burr,  32  Mich.,  332;  Ames  vs.  Sni- 
der, 69  111.,  376. 

§  4.  Arrest  without  Probable  Cause.— If  the  jury  believe, 
from  the  evidence,  that  the  defendant  maliciously  caused  the 
arrest  of  the  plaintiff,  on  a  criminal  charge,  without  probable 
cause  to  believe  that  he  was  guilty  of  the  crime  alleged  agiinst 
him,  as  charged  in  the  declaration,  then  the  jury  should  lind 
the  defendant  guilty. 

§  5.     Malice  may  be  Inferred  from  Want  of  Probable  Cause. — 

The  court  instructs  the  jury,  that  if  they  believe,  from  the 
facts  and  circumstances  proved  on  this  trial,  that  defendant 
had  not  probable  cause  for  prosecuting  the  plaintiff,  and  that 


298  MALICIOUS    PROSECUTION. 

lie  did  prosecute  liim,  as  charged  in  tlie  declaration,  tlien  the 
jury  may  infer  malice  from  such  want  of  probable  cause. 
Cooley  on  Torts,  185;  Ewin.g  vs.  Sanford,  19  Ala.,  605; 
RarT^rader  vs.  Moore,  44  Cal.,  144;  Pankett  vs.  Liverinore,  5 
Clarke  {l^.),2T7;'  Kncg  vs.  Ward,  77  111.,  603;  IMlidaj/ v&. 
Sterling,  62  Mo.,  321;  Edgeworth  vs.  Carson,  43  Mich.,  241; 
Wertheim  vs.  Altschuler,  12  N.  W.  Rep.,  107. 

If  a  criminal  prosecution  is  shown  to  be  without  reasonable 
or  probable  cause,  the  jury  may  infer  malice. 

"If  you  believe,  from  the  facts  and  circumstances  as  given 
in  evidence,  that  the  defendant  had  not  probable  cause  for 
the  arrest  and  imprisonment  of  the  plaintiff,  then  and  in  such 
case  you  may  infer  malice  from  such  want  of  probable  cause." 
Boy\^.  Goings,  112  111.,  662. 

The  jury  are  instructed,  as  a  matter  of  law,  that  the  com- 
mencement of  a  criminal  prosecution,  simply  for  the  purpose 
of  collecting  a  debt  or  private  claim,  is  an  abuse  of  the  process 
of  the  court,  and  would  be  conclusive  evidence  of  malice  on 
the  part  of  the  person  commencing  such  proceeding,  and  in 
such  case  the  advice  of  counsel  would  be  no  protection. 
"Whether  in  this  case  the  proceedings  were  commenced  against 
the  plaintiff  with  a  lonajide  intention  of  prosecuting  a  sup- 
posed criminal  offense  or  merely  for  the  purpose  of  securing 
a  private  claim,  are  questions  to  be  determined  by  the  jury^ 
from  the  evidence.     Livingston  vs.  Burroughs,  33  Mich.,  511. 

The  jury  are  instructed,  that  the  prosecution  of  a  person 
criminally,  with  any  other  motive  than  that  of  bringing  a 
guilty  person  to  justice,  is  a  malicious  prosecution.  If  made 
to  procure  the  surl-ender  of  the  prosecutor's  note,  it  is  mali- 
cious in  law. 

If  you  believe,  from  the  evidence,  that  when  the  defend- 
ant made  the  complaint  before  the  justice,  he  did  not  have 
probable  cause  to  believe  that  such  complaint  was  true,  then 
you  may  infer  malice,  and  express  malice  need  not  be  proved. 

The  jury  are  instructed,  that  while  the  law  is,  that  they  may 
infer  malice  from  the  want  of  probable  cause  for  the  institu- 
tion of  the  criminal  prosecution  against  the  plaintiff,  if  they 
believe,  from  the  evidence,  that  such  prosecution  was  com- 
menced without  probable  cause,  still,  the  jury  are  not  bound 
t)  infer  malice  from  that  fact.     The  law  is,  that  malice  may 


MALICIOUS    TROSECUTION.  299 

be,  but  it  is  not  necessarily,  inferred  from  want  of  probablo 
cause  for  the  commoncenient  of  a  criminal  prosecution. 
Paiiket  vs.  Llvermore,  5  la.,  277;  Smith  vs.  Howard^  28  la., 
51;  Cooley  on  Torts,  185. 

§  6.  Burden  of  Proof  on  the  Plaintiff. — The  jury  arc  in. 
structed,  that  to  warrant  a  conviction  in  this  case,  the  plaintitf 
must  not  only  prove  malice,  but  he  must  also  show  that  there 
was  no  probable  cause  for  the  prosecution  in  question;  and 
the  defendant  is  not  bound  to  prove  probable  cause  unless  the 
plaintiff  has  introduced  some  evidence  tending  to  show  the 
absence  of  it.  And  though  the  jury  may  believe,  from  tlie 
evidence,  that  the  plaintiff  has  shown  malice  on  the  part  of 
the  defendant,  in  causing  the  criminal  prosecution  in  question 
to  be  commenced,  still,  if  the  jury  further  believe  that  the 
plaintiff  has  failed  to  show,  by  a  preponderance  of  evidence, 
the  want  of  probable  cause,  then  the  jury  should  find  for  the 
defendant.  1  Hill,  on  Torts,  416 ;  Burton  vs.  St.  Paul,  M.  & 
M.  By.  Co.,  22  N.  W.  Eep.  300;  Dwain  vs.  BescaUo,  5  Pac. 
Eep.  903. 

The  jury  are  instructed,  that  to  warrant  a  verdict  for  the 
plaintiff  in  an  action  for  malicious  prosecution,  there  must  be 
malice  on  the  part  of  the  prosecutor,  and  a  want  of  probable 
cause  for  believing  that  the  accused  is  guilty  of  the  offense 
charged.  If  the  prosecuting  witness  acts  in  good  faith,  on 
evidence,  whether  true  or  false,  which  is  sufficient  to  create, 
in  the  mind  of  a  reasonably  cautious  man,  a  belief  of  the  guilt 
of  the  accused,  he  is  protected  and  justified  in  commencing  the 
prosecution. 

The  jury  are  instructed,  that  the  information  that  will 
justify  the  making  of  a  criminal  complaint  against  another, 
for  the  purpose  of  having  him  arrested,  must  be  of  such  a 
character,  and  obtained  from  such  sources,  that  business  men 
generally  of  ordinary  care,  prudence  and  discretion,  would  feel 
authorized  to  act  upon  it  under  similar  circumstances.  And, 
in  this  case,  if  the  jury  believe,  from  the  evidence,  that  the 
defendant  made  the  alleged  affidavit,  before  the  justice  of  the 
peace,  for  the  arrest  of  the  plaintiff,  and  thnt  he  was  arrested 
in  consequence  thereof,  then  it  is  a  question  of  fact  to  be 
determined   by   the  jury,  from   the   evidence,  whether  the 


300  MALICIOUS   PKOSECUTION. 

defendant,  when  lie  made  the  complaint,  acted  upon  feueh 
information  as  men  of  ordinary  care,  prudence  and  discretion 
would  have  felt  warranted  in  acting  upon  under  similar  cir- 
cumstances.    Livingston  vs.  Burroughs,  33  Mich.,  511. 

The  jury  are  instructed,  that  to  entitle  the  plaintiff  to  re- 
cover, the  jury  must  find,  from  the  evidence,  three  material 
points:  first,  that  the  prosecution  complained  of  was  com- 
menced by  the  defendant  through  malice ;  second,  that  it  was 
without  probable  cause:;  and,  third,  that  the  prosecution  was 
determined  and  ended  before  the  commencement  of  this  suit. 
And  if  the  plaintiff  has  failed  to  show,  by  a  preponderance  of 
evidence,  either  one  of  these  three  propositions,  the  jury 
should  find  for  the  defendant. 

§  7.  What  is  a  Want  of  Probable  Canse. — If  the  Jury  believe, 
from  the  evidence,  that  the  defendant  instituted  a  criminal 
proceeding  against  the  plaintiff,  as  charged  in  the  declaration, 
and  if  they  further  find,  from  the  evidence,  that  there  were 
no  circumstances  connected  with  the  transaction,  out  of  which 
the  prosecution  grew,  and  that  no  information  regarding  it 
came  to  the  knowledge  of  defendant,  which  would  warrant  a 
reasonable  and  prudent  man  in  believing  that  the  plaintiff  was 
guilty  of  the  charge  made  against  him,  then  there  was  no 
probable  cause  for  the  prosecution.  J/c  Williams  vs.  Hohen, 
42  "Md.,  56;  Harpham  vs.    Whitney,  77  111.,  32. 

§  8.  Want  of  Probable  Cause  Cannot  be  Inferred  from  Proof  of 
Malice. — The  court  instructs  the  jury,  that  in  order  to  sustain 
the  action  for  malicious  prosecution,  it  must  be  proved,  by  a 
preponderance  of  the  evidence,  that  the  prosecution  com- 
plained of  was  made  with  malice,  and  also  without  probable 
cause;  and  if  both  these  requisites  are  not  so  proved,  the  jury 
should  find  for  the  defendant.  Cooley  on  Torts,  184;  Casper- 
son  vs.  Sproule,  39  Mo.  39;  Center  vs.  Spring,  2  Clarke  (la.), 
393;  Ileyne  vs.  Blair,  62  K.  Y.,  19;  Shidmore  vs.  Bricker, 
77  111.,  164. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 
criminal  prosecution  complained  of  was  made  by  the  defend- 
ant through  malice,  still  the  jury  must  not  infer  want  of  prob- 
able cause  from  such  malice.     Want  of  probable  cause  ran.st 


MALICIOUS    PKOSECUTION.  301 

be  made  to  appear  from  the  evidence,  or  el^e  the  jury  must 
tind  for  the  defendant,  no  matter  how  malicious  the  jury  may 
find  the  defen  laut's  motives  to  have  been,  in  instituting  the 
criminal  prosecution. 

§  9.     Not  Necessary  that  a  Crime  Should  Have  Been  Committed. — 

The  court  instructs  the  jury,  that  to  justify  an  arrest  on  a 
criminal  charge,  it  is  not  required  that  a  crime  shall  in  fact 
liave  been  committed.  If  the  facts  which  come  to  a  person's 
knowledge  are  such  as  to  create  a  belief  that  a  crime  bad  been 
committed  by  the  person  charged,  in  the  mind  of  an  impar- 
tial, I'easonable  man,  this  would  be  sufficient  to  constitute 
probable  cause  for  making  an  arrest,  although  no  crime  had 
in  fact  been  committed.     Flichhiger  vs.    Wagner^  46  Ind.,  5S0. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant, 
when  he  instituted  the  prosecution  complained  of,  honestly 
believed  the  plaintiff  was  guilty  of  the  offense  charged,  and  that 
defendant's  belief  was  founded  on  a  knowledge  of  circumstances 
tending  to  show  such  guilt,  and  sufficient  to  induce,  in  the 
mind  of  an  ordinarily  reasonable  and  cautious  man,  the  belief 
in  such  guilt,  then  such  belief  on  the  part  of  the  defendant 
negatives  the  idea  of  the  want  of  probable  cause.  lilrsch  vs. 
Feeney^  83  111.,  .548;  Brennan  vs.  Tracy,  2  Mo.  App.,  540. 

A  party  making  complaint  against  another,  and  procuring 
his  anest  upon  a  criminal  charge,  is  not  bound  to  prove  his 
guilt  or  procure  the  finding  of  an  indictment  against  him,  at 
the  peril  of  being  personally  liable  in  an  action  for  damages. 
If  he  acts  upon  probable  cause,  he  is  excusable,  whatever  the 
result  of  the  prosecution. 

In  an  action  for  malicious  prosecution,  the  burden  of  jiroof 
is  on  the  plaintiff"  to  show  that  the  defendant  acted  maliciously, 
and  without  any  reasonable  or  probable  cause.  Calef  vs. 
ThoTTMS,  81  III,  478;  FlecMnger  vs.  Wagner,  46  Md.,  580; 
£?'ennan  vs.  Tracy,  2  Mo.  App.,  540. 

§  10.  Tlie  Prosecution  must  be  Ended. — The  jury  are  in- 
structed, that  in  order  to  maintain  an  action  for  malicious  pros- 
ecution, it  must  apj:)ear,  from  the  evidence,  that  the  alleged 
malicious  prosecution  has  been  legally  terminated.  Striking 
the  case  from  the  docket,  on  motion  of  state's  attorney,  with 


302  MALICIOUS    PROSECUTION. 

leave  to  reinstate  the  same,  is  not  a  legal  termination  of  the 
prosecution.  Blalock  vs.  Randall^  76  111.,  224;  Clarlc  vs. 
Cleveland,  6  Hill.,  344;  Cardinal  vs.  Smith,  109  Mass.,  159; 
Leever  vs.  Hammill^  57  Ind.,  423;  Casebeen  vs.  Bice,  23  JN". 
W.  Eep.,  693. 

§  11.  Discharge  by  Justice. — That  the  fact  that  tlie  plaintiff 
was  discharged  bj  the  justice  of  the  peace  before  whom  he 
was  brought,  upon  the  charge  made  against  him,  is  not  such 
evidence  of  a  want  of  probable  cause  as  will  alone  sustain  an 
action  for  a  malicious  prosecution.  Thor_pe  vs.  Balliett,  25 
111.,  339. 

§  12.  Advice  of  Counsel. — If  a  party  about  to  commence  a 
criminal  prosecution  communicates  to  the  state's  attorney  all 
the  material  facts  affecting  the  question  of  the  guilt  of  the 
party  about  to  be  accused,  which  are  known  to  him,  or  of 
which  he  had  notice,  and  then  acts  upon  his  advice,  the  pre- 
sumi^tion  of  malice  is  rebutted,  and  an  action  against  him  for 
malicious  prosecution  will  fail.  Calef  vs.  Th'/mas,  81  111., 
478;  Andersen  vs.  Frlnd,  71  111.,  475;  McCarthy  vs.  Kitchen, 
59  Ind.,  500;  Johnson  vs.  Ifiller,  29  K  W.  Eep.,  743;  Siniih 
vs.  Austin,  49  Mich.,  286. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  when 
a  party  communicates  to  counsel  in  good  standing  all  the  facts 
bearing  upon  the  guilt  of  the  accused,  of  which  he  has  knowl- 
edge, or  could  have  ascertained  by  reasonable  diligence,  and 
in  good  faith  acts  upon  the  advice  of  such  counsel  in  prosecut- 
ing the  party  accused,  he  cannot  be  held  responsible  for  mali- 
cious prosecution.  Josselyn  vs.  McAllister,  22  Mich.,  300; 
Ajidersen  vs.  Frind,  71  111.,  475;  Ash  vs.  Marlow,  20  Ohio, 
119;  Walter  vs.  SSample,  25  Pa.  St.,  275;  Sharpe  vs.  Johnson, 
59  Mo.,  557;  Acton  vs.  Coffman,  36  K  W.  Rep.,  775. 

The  court  instructs  the  jury,  that  if  thej'  believe,  from  the 
evidence,  that  the  defendant,  before  he  instituted  the  criminal 
])rosecution,  fully,  fairly  and  truthfully  stated  all  the  facts  and 
circumstances  in  relation  to  the  alleged  crime,  to  respectable 
counsel,  and  that  such  counsel  advised  him  that  lie  had  reason- 
able cause  to  institute  the  criminal  ])roceedings  against  the 
plaintiff,  and  that  the  defendant,  in  good  faith,  acted  upon  such 


MALICIOUS    riiOSECUTION.  303 

advice,  then  the  plaintiff  cannot  maintain  this  action,  whether 
the  defendant  in  the  criminal  prosecution  was  guilty  or  not; 
and  the  jury  should  fiud  for  the  defendant,  lioss  vs.  Innes, 
26  111.,  259. 

The  court  instructs  the  Jui-y,  that  whether  or  not  the  defend- 
ant did,  before  instituting  the  criminal  proceedings,  make  a 
full,  fair  and  honest  disclosure  to  the  attorney  of  all  the  ma- 
terial facts  bearing  upon  the  guilt  of  the  plaintiff,  of  which 
he  had  knowledge,  and  which  he  could  have  ascertained  by 
reasonable  diligence,  and  whether,  in  commencing  such  pro- 
ceedings, the  defendant  was  acting  in  good  faith  upon  the  ad- 
vice of  his  counsel,  are  questions  of  fact  to  be  determined  by 
the  jury,  from  all  the  evidence  and  circumstances  proved  in 
the  case.  And  if  the  jury  believe,  from  the  evidence,  that  the 
defendant  did  not  make  a  full,  fair  and  honest  disclosure  of  all 
such  facts  to  his  counsel,  then  such  advice  can  avail  him  noth- 
ing in  this  suit.     Roy  vs.  Goings,  112  111.,  663. 

If  you  believe,  from  the  evidence,  that  the  defendants  insti- 
tuted the  criminal  prosecution  from  a  fixed  determination  of 
their  own,  rather  than  from  the  opinions  of  legal  counsel,  or 
that  a  full,  fair  and  true  statement  of  all  the  facts  known  to 
them  was  not  submitted  to  the  counsel,  then,  in  either  case, 
the  opinion  given  by  the  counsel  is  no  defense  in  this  action, 
if  you  believe,  from  the  evidence,  that  the  criminal  charge  was 
false,  and  made  without  probable  cause.  "Before  the  defend- 
ant can  shield  himself  by  the  advice  of  counsel,  it  must  appear 
from  the  evidence,  that  he  made,  in  good  faith,  a  full,  fair  and 
honest  statement  of  all  the  material  circumstances  bearing 
upon  the  supposed  guilt  of  the  plaintiff  which  were  within 
the  knowledge  of  the  defendant,  or  which  the  defendant  could, 
by  the  exexercise  of  ordinary  care,  have  obtained,  to  a  respect- 
able attorney  in  good  standing,  and  that  the  defendant  in  good 
faith  acted  upon  the  advice  of  said  attorney  in  instituting  and 
carrying  on  the  prosecution  against  the  plaintiff."  Hoy  vs. 
Goings,  112  111.,  663;  Logan  vs.  Waytag,  57  la.,  107;  Porter 
vs.  Knight,  19  N.  W.  Eep.,  282. 

The  jury  are  instructed,  that  if  they  believe,  from  the  evi- 
dence, that  the  plaintiff  was  charged,  arrested  and  treated,  as 
stated  in  his  declaration,  and  that  the  only  ground  for  that 
charge  and  arrest  was  the  retention  of  the  % ,  mentioned 


304  MALICIOUS    PKOSECUTION. 

b}'  the  witnesses,  and  tliat  the  defendant  knew,  at  the  time  he 
advited  with  his  attorney,  that  the  plaintiff,  in  good  faith, 
claimed  the  right  to  pay  himself  that  money  on  his  salary,  and 
that  he  did  not  state  that  fact  to  his  attorney,  then  the  attor- 
ney's advice  is  no  protection  to  him  in  this  suit. 

§  13.  Presnniption  from  Good  Character. — If  the  jury  believe, 
from  the  evidence,  that  the  plaintiff,  up  to  the  time  of  his  ar- 
rest, uniformly  bore  a  good  reputation  for  honesty  and  integ- 
rity, and  that  defendant  knew  his  reputation  to  be  such  up  to 
the  time  of  his  arrest,  then  that  fact  is  a  proper  one  to  be  con- 
sidered by  the  jury,  in  connection  with  all  the  other  evidence 
in  the  case,  in  determining  whether  or  not  defendant  had  prob- 
able cause  to  believe,  and  did  believe,  in  good  faith,  that  the 
plaintiff  was  guilty  of  the  crime  charged  against  him.  Wood- 
worth  V.  Mills,  61  Wis.,  44. 


CHAPTER  XXIX. 

MALPKACTICE. 


Sec.    1.     Warranty  of  skill,  knowledge  and  care  implied. 

2.  Patient  bound  to  follow  instructions. 

3.  Burden  of  proof. 

§  1.     A  Warranty  of  Skill,  Knowledge  and  Care  Implied. — The 

court  instructs  the  jury,  that  if  a  person  holds  himself  out  to 
the  public  as  a  physician  and  surgeon,  he  must  be  held  to  pos- 
sess and  exercise  ordinary  skill,  knowledge  and  care  in  his  pro- 
fession in  every  case  of  which  he  assumes  the  charge,  whether 
in  the  particular  case  he  receives  fees  or  not.  MoNeoins  vs. 
Lowe,  40  111.,  209;  1  Hill,  on  Torts,  224;  MeCandless  vs.  3£c- 
Wha,  22  Penn.,  261;  Simonds  vs.  Henry,  39  Me.,  155;  Gei- 
selman  vs.  Scott,  25  Ohio  St.,  86. 

Where  an  injury  results  from  a  want  of  ordinary  skill,  or 
from  a  failure  to  exercise  ordinary  skill  or  attention  in  the 
treatment  of  a  case,  the  physician  or  surgeon  is  held  responsi- 
ble for  such  injury.     Barnes  vs.  Means,  82  111.,  379. 

The  highest  degree  of  care  and  skill  is  not  required  of  a 
physician  to  relieve  him  from  liability  for  damages  resulting 
from-his  treatment  of  a  patient — only  reasonable  care  and  skill 
are  required.     Eoltzman  vs.  Hoy,  118  111.,  534. 

While  persons,  who  hold  themselves  out  to  the  public  as 
physicians  and  surgeons,  are  not  required  to  possess  the  high- 
est degree  of  knowledge  and  skill  which  the  most  learned  in 
their  profession  may  have  acquired,  yet  they  are  bound  to  pos- 
sess and  exercise,  in  their  practice,  at  least  the  average  degree 
of  knowledge  and  skill  possessed  and  exercised  by  the  mem- 
bers of  their  profession  generally  in  the  locality  in  which  they 
practice.  Gates  vs.  Fleischer,  67  Wis.,  504;  Gramm  vs. 
Boener,  56  Ind.,  497.  See  Smother  vs.  HanTiS,  34  la.,  286; 
Almon  vs.  Nugent,  34  la.,  300. 

Every  person  who  offers  his  services  to  the  public  generally, 
20  ■  (305) 


306  MALPKACTICE. 

in  any  profession  or  business,  impliedly  contracts  with  those 
who  employ  him,  that  he  is  a  person  of  the  skill  and  expe- 
rience which  is  possessed,  ordinai-ily,  by  those  who  practice,  or 
profess  to  understand  the  same  art  or  business,  and  which  is 
generally  regarded  by  those  most  conversant  with  that  profes- 
sion or  employment,  as  necessary  to  qualify  him  to  engage  in 
such  business  successfully.     Holtziiian   vs.  Hoy,  118  111.,  534. 

A  surgeon  who  offers  his  services  to  the  ]  ublic  as  such,  im- 
pliedly contracts  with  his  employer,  that  he  has  ordinary 
knowledge  and  skill  in  his  profession;  and  also,  that  he  will 
use  reasonable  and  ordinary  care  and  diligence,  in  the  exertiou 
and  application  of  his  skill  and  knowledge,  to  accomplish  the 
purpose  for  which  he  is  employed. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant, 
,  held  himself  out  to  the  public  as  a  pJij'siciau  and  sur- 
geon, and  that  he  was  employed  to  treat,  as  a  surgeon,  an 
injury  sustained  by  the  plaintitf,  as  charged  in  the  dec!ai'ation, 
and  that  he  undertook  such  em])loyment,  and  that  he  did  not 
treat  the  said  injury  with  ordinary  skill  and  knowledge,  and 
that  the  plaintiff  sustained  any  injury  or  damage  by  reason 
thereof,  then  the  jury  should  find  for  the  plaintifl:.  Hallarn 
vs.  Means,  82  111.,  379. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff, 
having  broken  his  leg,  em])loyed  the  defendant,  as  his  physi- 
cian and  surgeon,  to  set  and  attend  to  the  same,  and  that  the 
defendant,  holding  himself  out  as  a  physician  and  surgeon, 
undertook  and  entered  upon  such  employment,  then  the  plaint- 
iff was  entitled  to  receive  from  the  defendant  the  care,  atten- 
tion and  skill  of  an  ordinarily  skillful,  pliysician  and  sui'geon. 

And  if,  from  the  evidence  in  the  case,  the  jury  further 
believe,  that  the  plaintiff  did  not  receive  from  tlie  defendant 
such  care,  attention  and  skill,  and  that  in  consequence  thereof, 
and  without  fault  on  his  part,  the  plaintiff  sutlered  increased 
pain,  and  suffered  the  injury  complained  of  in  the  declaration, 
then  the  defendant  is  liable  in  this  suit,  and  the  jury  should 
render  a  verdict  for  the  plaintiff.  Kendall  vs.  Brown^  86 
111.,  387. 

The  care  and  skill  a  surgeon  should  use  in  the  practice  of 
his  profession,  should  be  proportionate  to  the  character  of  the 
injury  he   treats,  within   the  limits  of   all  ordinary  skill  and 


MALPKACTICE.  3U7 

knowledge,  and  if  the  jury  believe,  from  the  evidence,  that 
the  injury  in    question  was  severe,  and    that   the  defendant, 

,  did  not  treat   it  with   the  skill    and  care  its   severity 

reasonably  demanded,  within  the  limits  of  ordinary  surgical 
skill  and  knowledge,  and  that  the  plaintiff  was  injured  by  the 
want  of  such  skill  and  care,  they  will  find  for  the  plaintiff. 

If  the  jury  believe,  from  the  evidence,  the  plaintiff  has  sus- 
tained any  injury  by  reason  of  the  unnatural  or  improper  posi- 
tion of  the  (ulna,)  or  either  of  the  bones  of  the  wrist  or  fore- 
arm mentioned  in  the  declaration,  and  that  such  improper  or 
unnatural  position  of  said  bones  resulted  from  want  of  ordi- 
nary skill,  or  from  the  negligence  of  the  defendant,  while 
treating  the  injury  in  question,  as  ph3^sician  or  surgeon,  then 
the  defendant  would  be  liable  in  damages  for  said  injury. 

If  the  jury  believe,  from  the  evidence,  that  during  the  time 
that  the  defendant  was  treating  the  injury  in  question,  the  prui- 
ciples  and  practice  of  good  surgery  required  that  passive  motion 
should  have  been  commenced  and  practiced  in  the  wrist  or  fin- 
gers of  said  plaintiff,  and  that  the  defendant  did  not  advise  or 
practice  such  passive  motion,  and  that  tlie  ])laintiff  sustained 
damage  thereby,  the  defendant  would  be  liable  for  the  damage 
so  sustained. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
did  not  use  ordinary  skill  and  diligence  as  a  surgeon,  in  the 
treatment  of  the  plaintiff's  injuries,  as  alleged  in  the  declara- 
tion in  this  case,  and  that,  as  a  consequence  thereof,  the 
plaintiff  has  suffered  damages,  the  jury  should  find  for  the 
plaintiff  and  assess  the  damages  in  such  an  amount  as  they 
believe,  from  the  evidence,  he    has  sustained,  not  exceeding 


If  the  jury  believe,  fi-om  the  evidence,  that  the  defendant, 
in  the  treatment  of  the  injury  in  question,  did  not  exhibit  tJie 
knowledge  and  skill  of  an  ordinary  good  surgeon,  or  did  not 
apply  such  knowledge  and  skill  with  reasonable  care  and  at- 
tention, and  that  by  reason  thereof  the  plaintiff  suffered  dam 
age,  it  affords  no  excuse  to  the  defendant  that  other  surgeons 
were  called  in  and  examined  the  injury,  without  his  knowledge 
or  consent,  unless  it  appears  that  the  interference  of  such 
surgeons  in  some  manner  tended  to  produce  the  injurious  con- 
sequences complained  of. 


3U8  MALPEACTICE. 

§  2.  Patient  Bound  to  Follow  Instructions. — The  court  in- 
structs the  jury,  that  where  a  person  employs  a  phj^sician  or 
snr<^Gon  to  treat  a  disease  or  an  injury  the  patient  is  bound  to 
adopt  and  follow  out  all  reasonable  directions  and  require- 
ments of  the  physician,  relating  to  the  treatment  or  care  of  the 
disease  or  injury,  and  if  he  does  not  do  so,  and  injurious  con- 
sequences, affecting  the  disease  or  injury,  result  from  hi; 
failure  so  to  do,  he  cannot  recover  of  the  physician  or  surgeon, 
alleging  a  want  of  skillfulness  on  the  part  of  the  physician  or 
surgeon.  Gramin  vs.  Boener,  56  Ind.,  497;  Geiselniaii  vs. 
Scott,  25  Ohio  St.,  86. 

The  jury  are  further  instructed,  that  it  is  the  duty  of  a 
patient  to  co-operate  with  his  physician  or  surgeon,  and  to 
conform  to  all  reasonably  necessary  prescriptions  and  direc- 
tions, regarding  the  care  or  treatment  of  the  disease  or  injury; 
and  if  he  will  not,  or  if,  imder  the  pressure  of  pain,  he  cannot, 
then  he  cannot  hold  his  surgeon  responsible  for  any  injurious 
consequences  arising  from  his  failure  to  obey  such  prescrip- 
tions or  instructions,  if  any  such  is  shown  by  the  evidence.  1 
Hill,  on  Torts,  225. 

If  the  jury  find,  from  the  evidence,  that  the  defendant 
directed  the  plaintiff  to  observe  absolute  rest  as  a  part  of  the 
treatment  of  the  injury  in  question,  and  tliat  that  direction 
•was  such  as  a  surgeon  or  physician  of  ordinary  skill  would 
adopt  or  sanction,  and  further,  that  the  plaintiff  negligently 
failed  to  observe  such  direction,  or  purposely  disregarded  the 
same,  and  that  such  neglect  or  disobedience  directly  con- 
tributed to  the  injuries  of  which  the  jilaintiff  complains,  then 
he  cannot  recover  in  this  action,  although  the  jury  may  believe, 
from  the  evidence,  that  the  defendant's  negligence  or  want  of 
skill  also  contributed  to  such  injuries.  Geiselmaii  vs.  Scott, 
25  Ohio  St.,  86. 

§  3.  Burden  of  Proof. — The  jury  are  instructed,  that  the 
plaintiff,  in  this  case,  is  bound  to  prove,  by  a  preponderance 
of  evidence,  some  one  or  more  of  the  charges  of  negligence 
contained  in  the  declaration,  and  that  the-^e  charges  relate  to 
the  setting  or  reducing  the  fracture  of  the  plaintiff's  leg,  and 
also  to  the  subsequent  treatment  thereof;  and  unless  the 
plaintiff  lias  proved,  by  a  pre[)onderance  of  evidence,  tliat  the 


MALPRACTICE.  309 

log  was  not  properly  set  in  the  first  instance,  or  that  the  sub- 
se(|uent  treatment  of  the  leg  by  the  defendant  was  unskillful 
and  inipro[)cr,  to  such  an  extent  as  to  show  want  of  ordinary 
skill,  care,  or  attention  to  said  leg,  then  it  will  be  the  duty  of 
the  jury  to  render  a  verdict  for  the  defendant.  Kendall  vs. 
Brown,  86  111.,  387;  Iloltzmaii  vs.  ILij,  8  N.  E.  Rep.,  832. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 
plaintiff's  leg  became  shortened  in  consequence  of  the  fract- 
ure, or  during  the  course  of  treatment  subsequent  to  the 
fracture,  still  the  defendant  is  not  liable  in  damages  therefor, 
unless  the  shortening  was  due  to  the  want  of  reasonable  and 
ordinary  care  and  skill  on  his  part-;  and  if  the  jury  further 
believe,  from  the  evidence,  that  the  extension  of  the  limb 
could  not  well  and  safely  be  effected,  nor  the  means  and  ap- 
.  |)lianees  for  that  purpose  be  safely  used,  before  the  time  for 
bony  I  ni  )n  to  commence,  and  that  bony  union,  under  proper 
treatment,  would  not,  and  did  not  commence  before  the  de- 
fendant w^as  discharged,  and  the  plaintiff  placed  under  the 
charge  of  another  surgeon,  then  the  defendant  would  not  be 
liable  in  damages  resulting  from  the  shortening  of  the  limb. 
Kendall  vs.  Brown,  74  111.  232. 

In  a  suit  against  a  surgeon  for  malpractice  in  treating  an 
injury,  the  plaintiff  is  not  entitled  to  recover  anything  on 
account  of  the  v^aiii  and  suffering  caused  by  the  injury,  but 
only  for  such  i.ivhtionai  pain,  suffering  and  injury  as  is  pro- 
duced by  the  neifligeiiee  Ki\  want  of  skill  of  the  defendant  in 
the  treatment.      Weng&i  Yti.  Colder^  78  111.,  275. 


CHAPTER  XXX. 
MAKKIED  WOMEN. 


Sec.     1.  May  own,  manage  and  convey  her  propsrfcy. 

2.  May  employ  her  husband  as  her  agent. 

3.  When  liable  for  repairs  on  house. 

4.  May  ratify  the  acts  of  her  husband. 

5.  Husband  may  give  to  wife,  when. 

6.  "When  the  proceeds  of  the  farm  belong  to  the  husband. 

7.  W^iat  is  not  her  separate  estate  as  to  husband's  creditors. 

8.  Wife  may  give  her  property  to  her  husband. 

9.  Husband  entitled  to  the  earnings  of  minor  children. 
10.  Work  and  labor  of  married  women — Illinois. 

Note. — The  following  instructions,  relating  to  the  rights  and  powers  of 
married  women,  are  mostly  adapted  to  the  laws  of  those  states  where  the 
common  law  disabilities  of  married  women  have  been  removed  or  greatly 
modified  by  sftatute.  These  laws  vary  greatly  in  the  different  states,  and 
this  fact  must  be  borne  in  mind. 

§  1.  She  may  Own,  Manage  or  Convey. — The  court  instructs 
tlie  jury,  that  by  the  laws  of  this  state  a  married  woman  may 
own,  in  her  own  right,  real  or  personal  property  obtained  by 
descent,  gift  or  purchase,  and  she  may  manage,  sell  and  con- 
vey the  same  to  the  same  extent  and  in  the  same  manner  that 
her  husband  can  property  belonging  to  him. 

Since  the  year  18 —  the  husband  does  not,  by  marriage,  ac- 
quire title  to  the  money  or  property  of  the  wife,  but  she 
retains  all  her  rights  of  property,  and  may  deal  with  the  same 
as  if  she  was  unmari-ied.  And  money  loaned  by  the  wife  to 
the  husband  since  the  statute  of  18 — ,  whetlier  loaned  before 
or  after  marriage,  is  a  proper  personal  charge  against  him 
while  living,  and  against  his  estate  after  his  death.  Whitford 
vs.  Daggett,  81:  111.,  141;    Vail  et  at.  vs.  Mayer,  71  Ind.,  f59. 

The  products  of  the  land  of  a  married  woman,  the  rents  of 
her  real  estate,  the  increase  from  her  stock,  the  interest  on  her 
money,  are  all  hers,  as  absolutely  as  the  capital  or  things  from 
which  they  arise. 

(310) 


MAIIKIED    WOMEN.  311 

The  tact  that  a  crop  is  raised  on  the  land  of  a  wife,  under 
the  supervision  of  her  husband,  he  contributing  some  personal 
labor  in  controlling  and  managing  the  business,  will  not  malce 
the  crop  his,  or  subject  it  to  the  payment  of  his  debts.  Bon- 
gard  vs.  Core,  82  111.,  19:  Montgomery  vs.  Hickman,  62  Ind., 
598;  Hamilton  vs.  Boothe^  55  Miss.,  60. 

§  2.  May  Employ  Husband  as  Agent. — Under  the  laws  of  this 
state,  a  married  woman  owning  either  real  or  personal  prop- 
erty, in  her  own  right,  may  employ  her  husband  as  her  agent 
to  transact  the  business  growing  out  of  or  relating  to  such 
])roperty,  without  thereby  subjecting  the  property  to  the  pay- 
ment of  the  husband's  debts.  Olsen  vs.  Kern,  10  111.  App., 
578. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 
plaintiff,  in  the  management  of  her  farm,  availed  herself  of 
the  services  of  her  husband  as  her  agent,  and  that  he,  from 
time  to  time,  bestowed  a  portion  of  his  time  and  labor  in  such 
management,  still  this  alone  would  not  subject  the  farm  of  the 
plaintiff,  or  the  proceeds  thereof,  to  the  payment  of  the  hus- 
band's debts.      Wells  vs.  Smith,  54  Gar.,  262. 

If  the  jury  believe,  from  the  evidence,  that  during  the  sea- 
son of  18 —  the  plaintiff  was  the  owner  of  a  farm,  and  raised 
the  property  in  question  thereon,  and  that  the  husband  as- 
sisted in  rai-^ing  the  same,  still,  if  the  jury  further  believe, 
from  the  evidence,  that  in  what  the  husband  did  he  was  sim- 
ply acting  as  the  agent  of  his  wife,  then  the  property  so 
raised  would  be  the  property  of  the  wife  and  not  of  the  hus- 
band. 

The  fact,  if  proved,  that  the  husband  uses  and  enjoys  the 
separate  property  of  his  wife,  and  out  of  it  procures  the  means 
to  support  his  family,  does  not  render  such  property  liable 
for  the  debts  of  the  husband.     Blood  vs.  Barnes,  79  III.,  437. 

The  fact,  if  proved,  that  a  married  woman  allows  her  hus- 
band to  have  a  general  use  and  control  over  her  personal  prop- 
erty, such  use  and  control  being  of  a  character  consistent  with 
their  common  interests,  and  the  proper  enjoyment  of  it  by 
both,  will  not  make  it  liable  for  his  debts,  or  entitle  his  admin- 
istrator to  claim  the  same.    Primmer  vs.  Glahaugh,  78  111.,  94- 

A  husband  may  act  as  the  agent  of  his  wife  in  the  manage. 


312  MAKKIED   WOMEN. 

ment  and  control  of  licr  personal  property,  either  generally  or 
specially,  and  if  the  ])roperty  is  in  fact  the  property  of  the 
wife,  then  such  control  and  management  does  not  alter  the  title 
to  the  property  or  rendiu-  it  liable  for  the  debts  of  the  husband. 
And,  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
the  property  was  in  fact  the  property  of  Mrs.  G.,  then  tlie 
fact,  if  proved,  that  her  husband  did  control  and  manage  it, 
will  not  make  it  liable  for  his  debts.  Brownwell  vs.  Dixon,  37 
111.,  19T;  Raiilln  vs.    ^Ye8t,  25  Mich.,  195. 

When  a  married  woman  has  rajney,  or  separate  property 
in  her  own  right,  her  husband  may  act  as  her  agent  for  the 
control  of  her  property  or  the  investment  of  her  funds.  He 
may  lease  her  property  and  collect  the  rents,  or  invest  her 
money,  or  change  the  character  of  her  investments,  if  author- 
ized by  lier,  without  subjecting  her  property  to  the  payment 
of  his  debts.  Woi'tinaii  vs.  Price,  4:7  111.,  22;  Abhsy  vs.  Dego, 
44  Barb.,  374;  BucUeij  vs.  Wells,  33  K  Y.,  518;  Welch  vs. 
Kline,  57  Penn.,  428;  Cooper  vs.  Hare,  49  Ind.,  394;  Faller 
vs.  Aldeii,  23  Wis.,  301. 


§  3.  Wlien  Liable  for  Repairs  on  House. — And,  in  this  case,  if 
the  jury  believe,  from  the  evidence,  that  the  defendant  em- 
ployed the  plaintiff  to  perform  the  labor,  or  made  a  contract 
with  him  to  furnish  the  material  for  the  improvement  of  the 
house  in  question,  and  that  at  the  time  she  did  so  she  was  in 
the  possession  of  the  property,  and  then  claimed  and  repre- 
sented to  the  plaintiff  that  she  was  the  owner  of  it,  and,  fur- 
ther, that  the  plaintiff  b3lieved  such  representations,  and, 
relying  upon  them,  afterwards  went  on  and  performed  the 
labor  and  furnished  the  material  for  which  this  suit  is  brought, 
then  the  defendant  is  estopped  from  denying  that  she  was  the 
owner  of  the  property,  and  for  all  purposes  of  this  suit  she 
must  be  regarded  as  the  owner  of  the  property. 

§  4.  May  Ratify  the  Act  of  a  Husband. — In  order  that  a  mar- 
ried woman  shall  be  bound  by  the  acts  of  her  husband  in  sell- 
ing or  exchanging  her  property,  it  is  not  necessary  that  she 
should  expressly  authorize  him  beforehand  thus  to  act — she 
may  ratify  the  act  afterwards.     iVnd,  in  this  case,  if  the  jury 


MARRIED    WOMEN.  31  3 

believe,  from  the  evidence,  that  the  husband  of  plaintiff 
exchanged  the  mule  in  que.-;tion  with  the  defendant  for  a 
mare  of  the  defendant's,  either  as  his  own  property,  or  acting 
as  the  agent  of  the  coraiplainant,  and  that  at  or  about  the  time 
of  the  trade,  the  complainant  know  that  her  husband  had  so 
traded,  and  she  did  not,  as  soon  as  it  could  reasonably  be  done, 
repudiate  the  act  of  her  husband,  nor  claim  the  property,  then 
she  must  be  deemed  to  have  ratilied  the  act  of  the  husband 
in  making  the  exchangi;,  and  slie  cannot  now  recover  the  prop- 
erty on  the  ground  that  she  did  not  authorize  the  trade  or 
did  not  know  the  law.  Lichtenberger  vs.  Graham^  50  Ind., 
288. 

§  .5.  nuRband  May  Give  to  Wife,  When. — A  husband  out  of 
debt,  or  when  it  does  not  injure  existing  creditors,  may  settle 
property  on  his  wife,  either  by  having  it  conveyed  directly  to 
her,  or  to  another  in  trust  for  her,  and  subsequent  creditoi-s 
cannot  reach  it,  and  the  money  in  question,  if  the  jury  believe, 
from  the  evidence,  that  it  was  realized  from  the  sale  of  such 
property,  will  be  hers.     Lincoln  vs.  McLaugldin,  74  111.,  11. 

§  6.     Wlien   Proceeds  of  her  Farm  Belong    to  Husband. — The 

court  instructs  the  jury,  that  although  they  may  believe,  from 
the  evidence,  that  the  farm  on  which  the  wheat  in  dispute  was 
grown,  was  owned  by  the  i)lainTiiT,  still,  if  they  further  believe, 
from  the  evidence,  that  the  plaintiff's  husband,  in  his  own 
right,  by  his  own  labor,  and  that  of  his  minor  son  or  sons, 
took  care  of  and  raised  the  crops  grown  thei-eon,  then  such 
crops  would  be  liable  to  an  execution  against  him. 

The  court  further  instructs  the  jury,  that  although  they  be- 
lieve, from  the  evidence,  that  the  farm  on  which  the  wheat  in 
controversy  was  raised,  was  in  fact  owned  by  the  plaintiff, 
still,  if  they  further  believe,  from  the  evidence,  thut  her  hus- 
band was  allowed  by  lier  to  exercise  full  and  complete  author- 
ity over  said  farm — to  raise,  sell  and  dispose  of  the  products 
of  said  farm  in  his  own  name,  and  for  his  own  benefit,  and 
that  the  grain  in  question  was  raised  by  the  labor  of  the  hus- 
band and  men  in  his  employ,  assisted  by  his  minor  sons,  then 
she  would  be  estopped  from  denying  that  her  husband  had  an 
interest  in  the  crops  so  raised   and  grown  on  said  farm,  under 


314  MAKKIED    WOMEN. 

his  supervision,  and  by  the  exertions  of  himself,  the  men  in 
his  employ,  and  his  minor  son  or  sons. 

If  a  married  woman  places  her  money  or  property  in  the 
hands  of  her  husbimd  for  the  purpose  of  enabling  him  to 
carry  on  a  general  business,  nnder  such  circumstances  as  to 
enable  him  to  obtain  credit  on  the  faith  of  his  being  the  owner 
of  such  money  or  property,  and  he  does  thereby  obtain  credit, 
then  the  entire  capital  so  embarked  in  business,  with  the 
increase  thereof,  will  be  liable  for  the  husband's  debts.  Pat- 
ton  vs.  Gates,  67  111.,  164;  Wilson  vs.  Looinis,  55  111.,  352. 

When  the  husband,  as  the  head  of  the  family,  occupies  and 
cultivates  the  land  of  his  wife,  in  his  own  name,  then  he  is 
considered  in  law  as  occupying  the  farm,  with  her  consent,  for 
the  common  bene  tit  of  the  family.  And  the  proceeds  of  his 
toil  upon  such  land  are  as  much  his  ])roperty  as  though  he  had 
occupied  the  land  as  a  tenant,  and  had  rented  from  some  other 
person.     Stennett  vs.  Bradley^  35  N.  W.  Kep.,  467. 

§  7.     Wliat  Not  Separate  Estate  as  to  Creditors  of  Husband. — 

The  jury  are  instructed,  that  in  determining  the  issues  in 
this  case,  they  may  take  into  consideration,  together  with  all 
the  other  evidence  in  the  case,  the  circumstances  attending  the 
management  and  use  of  the  property  in  question,  before  and 
at  the  time  the  same  was  taken  on  the  {execution),  introduced 
in  evidence  by  the  defendant,  so  far  as  those  circumstances 
appear  in  evidence;  and  if,  fi-om  all  the  evidence  in  the  case, 
the  jury  believe  that  there  was  a  collusive  arrangement  or 
understanding  between  the  plaintiiff  and  her  husband,  that  the 
said  business  should  be  carried  on,  in  the  name  of  the 
plaintiff,  by  the  husband  for  his  own  use  and  benefit,  and 
further,  that  at  the  time  the  said  property  was  taken,  the  busi- 
ness was  carried  on  in  the  name  of  the  plaintiff,  under  such 
arrangement,  by  her  husband,  for  his  use  and  benefit,  then 
such  conduct  on  the  part  of  the  plaintiff  w^as  fraudulent  and 
unlawful,  as  against  the  creditors  of  the  husband,  and  the  jury 
should  find  that  the  property  belonged  to  the  husband. 

The  jury  are  instructed,  that  although  they  may  believe, 
from  the  evq'dence,  that  the  plaintiff  furnished  the  funds  with 
which  the  said  goods  were  purchased  and  said  business  carried 
on,  at  tlie  time  said  property  was    taken,  still,  if  the  jury 


MARRIED    WOMEN  815 

farther  believe,  from  tlie  evidence,  that  tlie  funds  so  furnished 
by  tlie  plaintiff,  were  placed  ii^tlie  hands  of  her  husband  for 
the  purpose  of  enabling  him  ito  carry  on  said  business,  for  his 
use  and  benefit,  and  that  he  was  the  sole  manager  thereof, 
and  that  his  skill  and  labor  was  devoted  to  carrying  on 
said  business,  without  any  agreement  or  arrangement  as  to 
his  salary  or  compensation,  then  the  jury  are  instructed, 
that  the  entire  capital  used  in  said  trade  or  business,  to- 
gether with  the  increase  thereof,  cannot  be  considered  the 
separate  estate  of  the  plaintiff,  but  the  same  became  liable  for 
the  debts  of  her  husband,  and  the  property  was  subject  to  the 
execution  offered  in  evidence  by  the  defendants. 

Although  the  jury  may  believe,  from  the  evidence,  that 
when  the  property  in  question  was  taken  by  the  officer,  the 
business  at  the  store,  etc,  was  being  conducted  and  carried  on 
in  the  name  of  the  plaintiff,  and  that  her  husband  claimed  to 
be  acting  only  as  the  agent  of  the  plaintiff,  still,  if  the  jury 
also  believe'  from  the  evidonci,  that,  with  plaintiff's  knowl- 
edge and  consent,  the  use  of  her  name  in  can-ying  on  said  busi- 
ness was  only  for  the  purpose  of  protecting  the  property  of 
her  husband  from  his  creditors,  or  was  with  the  intent,  on  her 
part,  to  secure  to  him  some  right  in  the  property,  to  the  prej- 
udice of  his  ci-editors,  then  the  jury  are  instructed,  that  sucli 
•conduct,  on  the  part  of  the  plaintiff",  was  fraudulent  as  to  sucli 
creditors,  and  the  verdict  of  the  jury  should  be  for  the  de- 
fendant. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  if  the 
wife  advance  her  own  separate  property  or  money,  and  place 
the  same  in  the  hands  of  her  husband,  for  the  purpose  of 
enabling  him  to  carry  on  any  general  trade  or  business,  for  his 
use  and  benefit,  and  the  husband  engages  in  such  business,  and, 
by  his  labor  and  skill,  increases  the  property  or  funds  while 
in  his  hands,  then  the  entire  capital  embarked  in  the  enter- 
prise, together  with  the  increase,  will  not  constitute  the  sep- 
arate estate  of  the  wife,  but  they  will  be  liable  for  the  debts 
of  the  husband.     .Robinson  vs.  Breems,  90  111.,  351. 

If  the  jury  believe,  from  th3  evidence,  that  the  property  in 
question  really  belonged  to  the  defendant  in  the  execution,  but 
was  claimed  and  called  the  property  of  his  wife,  for  the  pur- 
[^ose  of  covering  up  said  goods,  and  keeping  them  from  the 


316  MAEEIED    WOMEN. 

creditors  of  her  husband,  then  the  jury  should  find  for  the  de- 
fendant.    Brownwell  vs.  Dixo^i,  37  II h,  197. 

If  the  jury  believe,  from  the  evidence,  that  before  and  at 
the  time  that  the  property  in  question  was  taken  by  the  officer? 
it  was  in  the  possession  of  the  husband  of  the  plaintiff,  and 
imder  his  exclusive  control,  then  the  jury  are  instructed,  that 
the  fact,  if  proved,  that  the  plaintiff  received  the  property 
from  her  father  at  the  time  of  her  marriage,  or  that  it  was 
bought  with  money  received  from  her  father's  estate,  is  not 
alone  sufficient  to  entitle  her  to  hold  the  property  against  the 
creditors  of  her  husband;  the  }\wy  must  further  believe,  from 
the  evidence,  that  she  so  received  the  property  {op  money) 
since  the day  of,  etc. 

§  8.  Wife  may  Give  Property  to  Her  Husband  — Tlie  court 
instructs  the  jury,  that  although  tliey  may  believe,  from  the 
evidence,  that  the  notes  or  the  money  with  M'hich  the  pro]> 
erty  in  question  was  bought,  was  given  to  Mrs.  G.,  and  was 
originally  hers,  still,  if  the  jury  further  believe,  from  the  evi- 
dence, that  Mrs.  G.  afterwards  gave  the  said  notes  or  money 
to  her  husband  to  trade  upon,  or  lay  out  as  he  saw  fit,  and 
that  he,  with  the  said  notes  or  money,  bought  the  property  in 
question  in  his  own  name,  without  any  understanding  that  the 
property  should  be  liers,  then  the  property  became  tlie  projo- 
erty  of  the  husband,  as  far  as  his  creditors  are  concerned,  and 
was  liable  to  the  executions  against  him. 

§  9.  Husband  Entitled  to  Earnings  of  Minor  Children. — The 
court  instructs  the  jury,  that  the  father  is  entitled  to  all  the 
earnings  of  his  minor  children  until  they  become  of  age.  And 
so  long  as  the  father  lives  and  resides  with  his  family,  he  is 
entitled  to  the  earnings  or  wages  of  his  minor  children. 

§  10.     Work    and  Labor   by   Married  Women — Hlinois. — The 

court  instructs  the  jury,  that  a  married  woman  has  the  right 
to  sue  for  and  recover  for  her  personal  labor,  performed  for 
persons  other  than  her  husband,  the  same  as  if  she  were  unmar- 
ried; provided,  the  work  is  done  under  a  contract,  expressed 
or  implied,  made  with  her  and  not  with  her  liusband. 

Where  a  married  woman  performs  work  and  labor  for  a 


MARRIED    WOMEN.  317 

person,  not  her  husband,  under  a  contract,  expressed  or  im- 
plied, made  with  her,  her  husband  has  no  legal  right  to  collect 
her  wages,  except  by  her  authority,  or  with  her  consent;  and 
a  payment  to  Iier  husband  in  such  a  case,  without  her  authority 
or  consent,  will  be  no  defense  to  an  action  brought  by  lier  to 
recover  such  wages. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  per- 
formed work  and  labor  for  the  defendant  under  a  contract, 
either  expressed  or  implied,  made  by  her  and  that  she  has  not 
been  paid  therefor,  then  the  jury  should  find  for  the  plaintiff, 
although  they  may  believe,  from  the  evidence,  that  the  hus- 
band has  been  paid  for  the  same;  if  they  further  believe,  from 
the  evidence,  that  such  payment  was  made  without  her  con- 
sent, and  the  burden  of  proving  such  consent  is  on  the  de- 
fendant. 

The  jury  are  further  instructed,  that  they  have  no  right  to 
presume  that  the  husband  had  a  right  to  collect  or  settle  for 
his  wife's  wages  for  labor  performed  by  her  under  a  contract 
made  by  herself,  simply  from  the  fact  of  the  relation  of  hus- 
band and  wife  existing  between  them,  or  from  the  fact  of  their 
living  and  cohabiting  together,  as  husband  and  wife,  at  the 
time. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff 
actually  performed  the  services,  for  which  this  suit  is  brought, 
for  the  defendant,  and  that  at  that  time  she  had  no  knowledge 
of  any  contract  between  her  husband  and  the  defendant  in 
relation  to  such  services,  or  the  mode  of  payment  therefor, 
then  she  would  not  be  bound  by  any  such  contract,  even  if 
the  same  has  been  proved. 

"While  it  is  the  law,  in  this  state,  that  a  married  woman  may 
receive  and  sue  for  her  own  earnings  in  her  own  name,  yet 
this  rule  only  applies  when  the  married  woman  performs  such 
labor  under  a  contract,  made  by  herself,  either  expressed  or 
implied,  with  the  person  for  whom  the  labor  is  performed. 

If  a  husband  contracts  with  a  person;  at  a  fixed  price,  for 
the  services  of  himself  and  wife,  and  the  wife,  under  such 
contract,  knowingly  labors  with  her  husband  to  carry  out  this 
contract,  then  she  cannot  sue  for  the  recovery  of  services  so 
rendered. 

If  the  jury  believe,  from  the  evidence,  that  the  husband  of 


318  MAERIED    WOMEN. 

the  plaintiff  made  a  contract  with  the  defendant  for  the 
services  of  himself  and  wife,  for  the  time  in  question,  and  that 
the  plaintiff,  to  carry  out  this  contract  of  her  husband,  per- 
formed the  services  for  which  this  suit  is  brought,  then  such 
a  contract  would  be  the  contract  of  the  husband,  and  tho 
plaintiff  cannot  recover  for  such  services. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 
plaintiff"  performed  the  services  in  question,  under  a  contract 
made  by  lierself,  still,  if  the  jury  further  believe,  from  the 
evidence,  that  her  husband,  before  the  commencement  of  this 
suit,  received  pay  for  such  services,  with  the  knowledge  and 
consent  of  the  plaintiff",  such  payment  is  as  effectual  for  all 
purposes  as  if  made  to  herself,  and  she  cannot  recover  in  this 
suit. 


CHAPTER  XXXI. 

MEASURE  OF  DAMAGES. 


Sec.     1.  Death  from  negligent  act. 

2.  Death  from  intoxication — Suit  by  widow. 

3.  Exemplary  damages. 

4.  Damages  from  intoxication,  other  than  by  death. 

5.  Personal  injury. 

6.  Exemplary  damages — In  tort  generally. 

7.  Assault. 

8.  Exemplary  damages  in  assault. 

9.  Aggravation  of  damages. 

10.  Mitigation  of  damages. 

11.  Exemplary  damages  when  not  allowed. 

12.  Landlord  and  tenant — Premises  not  occupied — No  rent  paid. 

13.  Suit  on  replevin  bond. 

14.  Libel. 

15.  Malpractice. 

16.  Breach  of  marringe  contract. 

17.  Fraud  and  deceit. 

18.  In  trespass  and  trover. 

19.  Labor  and  services — Part  performance. 

20.  Contract  to  deliver — Part  performance. 

21.  Refusal  to  deliver  personal  property. 

22.  Property  bought  for  re-sale. 

23.  Refusal  to  accept  personal  property. 

24.  Slander,  words  actionable,  jjer  se. 

25.  Damages,  when  presumed. 

26.  Pecuniary  circumstances  of  defendant. 

27.  Plaintiff's  bad  reputation  may  be  shown. 

28.  Words  spoken  in  the  heat  of  passion. 

29.  Drunkenness  in  mitigation. 

30.  Plea  of  justification  must  be  filed  in  good  faith. 

31.  Exemplary  damages  may  be  given  in  slander,  when. 

32.  Common  carriers — Loss  of  baggage. 

33.  Goods  lost. 

34.  Damages,  how  determined. 

85.     Exemplary  damages  in  trespass. 

36.  Exemplary  damages  defined. 

37.  Malicious  prosecution. 

38.  Damages  in  trespass  or  false  imprisonment. 

(319) 


320  MEASUKE    OF    DAMAGES. 

§  1.  Death  from  Negligent  Act. — If  the  jury  should  find, 
from  the  evidence,  that  the  defendant  is  guilty  of  the  wrong- 
ful act,  neglect  or  default,  as  charged  in  the  plaintiff's  declara- 
tion, and  that  the  same  resulted  in  the  death  of  A.,  then  the 
plaintiff  is  entitled  to  recover  in  this  action  for  the  benefit  of 
the  {widow  and  next  of  kin  of  such  deceased)  such  damages  as 
the  jury  may  deem,  from  the  evidence  and  proofs,  a  fair  and 
just  compensation  therefor,  having  reference  only  to  the 
pecuniary  injuries  resulting  from  such  death,  to  such  widow 
and  next  of  kin,  not  exceeding  the  amount  claimed  in  the 
declaration.  Cooley  on  Torts,  270;  C,  B.  &  Q.  Bd.  Co.  vs. 
Payne,  Adm.,  59  111.,  534;  Raffertyvs,.  Buchman.  46  la.,  195; 
Steel,  etc.,  vs.  Kurtz,  28  Ohio  St.,  191. 

If  you  find,  from  the  evidence,  under  the  instruction  of  the 
court,  that  the  defendant  is  guilty  of  the  wrongfnl  act,  neglect 
or  default,  charged  in  the  declaration  in  this  suit,  and  that  the 
same  resulted  in  the  death  of  the  deceased,  and  that  the 
plaintiff'  is  entitled  to  a  verdict,  then  the  plaintiff  is  entitled 
to  recover,  for  the  benefit  of  the  widow  and  next  of  kin,  such 
an  amount  as  damages  as  you  believe,  from  the  evidence,  a 
just  and  fair  compensation  to  such  widow  and  next  of  kin, 
having  reference  only  to  their  pecuniary  loss,  resulting  from 
such  death.  C,  B~ &  Q.  Ed.  Co.  vs.  Payne,  59  111.,  534; 
C,  M.  <&  St.  P.  B.  B.  vs.  115  111.,  659;  Penn  Co.  vs.  Mar- 
shall, 119  111.,  399. 

The  jury  are  instructed,  that  in  estimating  the  pecuniary 
injury  which  the  widow  and  children  of  the  deceased  have 
sustained  by  his  death,  if  the  jury  believe,  from  the  evidence, 
that  they  have  sustained  any  injury  for  which  the  defendant 
is  liable,  as  explained  in  these  instructions,  then  the  jury  have 
a  right  to  take  into  consideration  the  support  of  the  said 
widow  and  minor  children,  and  the  instruction  and  physical, 
moral  and  intellectual  training,  as  well  as  the  ages  of  the  said 
minor  children,  so  far  as  these  matters  have  been  proved,  in 
determining  the  amount  of  damages  in  this  case.  1.  C.  Bd. 
Co.  vs.  Welde)i,  52  111.,  290 ;  Tilley  vs.  II.  B.  Bd.  Co.,  29 
K  Y.,  252 ;  Costello  vs.  Landwehr,  28  Wis.,  522. 

The  pecuniary  circumstances  of  the  widow  and  children, 
whether  they  are  rich  or  poor,  cannot  increase  or  diminish  the 
amount  of  damages  which  the  plaintiff  is  entitled  to  recover  in 


MEASURE    OF   DAMAGES.  321 

this  suit;  and  in  case  tlie  jury  find  the  issues  for  the  plaintiff, 
in  assessing  the  damages  which  tlie  plaintiff  is  entitled  to 
recover,  the  jury  should  disregard  all  testimony  and  state- 
ments of  the  counsel,  as  to  the  ])ecuniary  circumstances  of  the 
widow  and  children.  G.  *&  N.  W.  Rd.  Co.  vs.  Bayfield^  37 
Mich.,  205. 

If  you  believe,  from  the  evidence,  that  the  widow  of  the 
deceased,  at  the  time  of  his  death,  and  since,  by  reason  of  ill- 
health,  has  been  unable  to  perform  labor  to  support  herself 
and  family,  this  fact  cannot  increase  or  diminish  the  amount 
which  she  is  entitled  to  recover  in  this  suit;  and  if  you  should 
Und  the  issues  for  the  plaintiff,  then  you  are  instructed,  in 
the  assessment  of  damages,  to  disregard  all  the  testimony  in 
the  case  as  to  such  ill-health.  1.  C.  Rd.  Co.  vs.  Baches^  55 
111.,  379. 

In  this  case,  if  you  find  for  the  plaintiff,  you  can  only  allow 
such  damages  as  will  make  good  the  pecuniary  loss  sustained 
by  the  person  for  whose  use  this  suit  is  brought.  The  mental 
sufferings,  or  grief  of  survivors,  or  loss  of  domestic  or  social 
happiness,  or  the  degree  of  culpability  of  the  defendant,  are 
not  proper  elements  in  the  calculation  of  damages.  You  can 
not  award  exemplary  or  vindictive  damages;  you  must  ascer- 
tain, from  the  evidence,  the  pecuniary  loss  sustained  in  dollars 
and  cents,  as  nearly  as  3'ou  can  approximate  thereto,  and 
make  that  good.  Kansas  Pacific  Ry.  Co.  vs.  Cutter,  19 
Kan.,  83;  Blake  yb.  Midland,  etc.,  Rd.  (7o.,  18  Q.  B.  93; 
Oaldand  &  Co.  vs.  Fielding,  48  Penn.,  320;  Donaldson  vs. 
Miss.,  etc.,  Co.,  18  la.,  280. 

The  jury  must  found  their  estimate  of  tlie  amount  of  such 
loss  upon  such  facts  in  proof  as  tend  to  show  the  extent  of 
the  pecuniary  loss  sustained,  taking  into  consideration  the  age 
of  the  deceased,  and  all  such  other  evidence  as  may  afford 
them  the  means  of  making  the  estimate.  City  of  Chicago  vs. 
Major,  18  111.,  349. 

Note.— AVherc  the  statute  limits  the  recovery  the  instructions  may  con- 
form to  the  statute. 

If,  under  the  evidence  and  the  instruction  of  the  court,  the 

jury  find  the  defendant  guilty,  then  in  assessing  the  damages 

wdiich  the  plaintiff  is  entitled  to  recover,  the  jury  should  assess 

the  same  with  reference  to  the  pecuniary  loss  sustained  by  the 

21 


322  MEASUKE    OF    DAMAGES. 

wife  and  cliildren  of  t]ie  deceased,  having  regard  to  tlio  prob- 
able earnings  of  tlie  deceased,  taking  into  consideration  tlie 
age,  business  capacity,  experience  and  habits,  health,  energy 
and  perseverance  during  what  would  probably  liave  been  liis 
lifetime  if  he  had  not  been  killed,  so  far  as  these  several  mat- 
ters have  been  shown  by  the  testimony,  and  also  having  regard 
to  the  value  of  his  services  in  the  superintendence,  attention 
to  and  care  of  his  family,  and  the  education  of  his  children,  of 
which  they  have  been  deprived  by  his  death,  not  exceeding, 

however,  $ .     Baltimore,  etc.,  Rd.  Co.  vs.  Wightman,  29 

Gratt,  431;  Mathews  vs.   Warner,  29  Gratt.,  5T0. 

If,  under  the  evidence  and  the  instructions  of  the  court,  you 
find  the  defendant  guilty,  and  that  the  plaintiff  has  sustained 
any  pecuniary  loss  from  the  death  of  her  husband,  then,  in 
assessing  the  amount  of  such  damages,  the  jury  f-hould 
estimate  the  same  with  reference  to  the  fact  that  it  is  the 
legal  duty  of  the  husband  to  provide  the  wife  present  support 
and  maintenance  in  the  future,  and  she  is  entitled  to  such  a 
sum  as  will  make  her  whole  in  a  pecuniary  point  of  view, 
having  reference  to  the  pecuniary  advantage  which  the  jury 
believe,  from  the  evidence,  she  might  reasonably  have  expected 
from  the  continuance  of  the  life  of  her  husband  if  he  had  not 
been  killed  by  the  accident  in  question,  not  exceeding,  how- 
ever, the  sura  of  % .     Rafferty  vs.  Buck'inan,  46  la.,  195; 

Jsashoille,  etc.,  Rd.  Go.  vs.  Stevens,  9  Heisk.,  12. 

§  2.  Death  from  Intoxication — Suit  by  AVidow. — If  the  jury 
find,  from  the  evidence,  under  the  instructions  of  the  court, 
that  the  defendants,  or  either  of  them,  are  guilty,  as  cliarged 
in  the  declaration,  and  that  the  plaintiff  has  suffered  actual 
damages,  then  it  will  be  the  duty  of  the  jury  to  assess  the 
amount  of  such  actual  damages;  and  if  the  jury  further  be- 
lieve, from  the  evidence,  that  there  were  any  willful,  wanton 
and  aggravating  circumstances  attending  the  sale  of  said  in- 
toxicating liquors,  then  the  jury  may,  in  addition  to  such  actual 
damages,  find  such  further  exemplary  damages  as  they  shall 

deem  proper,  not  to  exceed  in  amount  the  sum  of  % , 

demanded  in  the  declaration. 

The  court  instructs  the  jury,  that  in  a  suit  by  a  wife  for  in- 
jury to  her  means  of  support,  caused  by  selling  liquor  to  her 


MEASURE   OF   DAMAGES.  323 

Imsband,  she  cannot  recover  exemplary  damages,  unless  the 
jury  liud,  from  the  evidence,  that  she  has  sustained  actual 
damages.  Graham  vs.  Fulford^  93  111.,  59G;  Gihnore  vs. 
Mathews^  67  Me.,  517. 

That  in  estimating  the  actual  damages  which  the  plaintiff 
has  sustained,  the  jury  should  not  take  into  consideration  any 
mortification  to  her  feelings,  or  mental  suH'ering  on  her  part; 
in  estimating  the  actual  dauiage,  the  jury  can  only  consider 
the  pecuniary  loss,  if  any,  which  she  has  sustained,  as  shown 
by  the  evidence,  but  no  allowance  can  be  made  for  the  grief 
or  bereavement  of  surviving  relatives.  Brantigan  vs.  WMte., 
73  111.,  561;  Kans.  P.  Ed.  Co.  vs.  Cutler,  19  Ivans.,  83; /i«;«z:- 
ingden  Rd.  Co.  vs.  Becker,  Stt  Penn.  St.,  419;  March  vs. 
Walker,  48  Texas,  372. 

In  case  the  jury  find  the  defendants  guilty,  then,  in  estimat- 
ing the  amount  of  actual  damages  which  the  plaintiff  has  sus- 
tained, if  any,  the  jury  should  not  take  into  account  the  anguish 
or  pain  of  mind,  or  feelings,  suffered  by  the  plaintiff  by  reason 
of  her  husband's  death ;  nor  should  they  allow  anything  for 
the  support  and  maintenance  of  the  children,  or  for  any  loss 
which  they  may  have  sustained  by  the  death  of  their  father. 

§  3,  Exemplary  Damages. — Although  the  jury  may,  in  this 
class  of  cases,  give  exem])lary  damages  if  they  find  the  defend- 
ant guilty,  and  further  find,  from  the  evidence,  that  the  plaint- 
iff lias  sustained  any  actual  damages,  yet  the  jury  cannot  give 
any  damages  by  way  of  punishment  to  the  defendant,  unless 
they  believe,  from  the  evidence,  that  the  plaintiff  has  sustained 
some  actual  pecuniary  damages;  nor  should  they  give  exem- 
plary damages,  unless  they  find,  from  the  evidence,  some  cir- 
cumstances of  aggravation  in  connection  with  the  conduct  of 
the  defendants  \or  some  of  thevi)  calling  for  such  damages. 
Bates  vs.  JDavis,  76  111.,  222;  3Ieidel  vs.  Aiithis,  71  111.,  241. 

If,  under  the  evidence  and  the  instruction  of  the  court,  the 
jury  find  the  defendant  guilty,  and  they  further  believe,  from 
the  evidence,  that  the  plaintiff  B.  has  suffered  any  pecuniary 
loss  in  her  means  of  support  in  consequence  of,  etc.,  then  if 
you  further  believe,  from  the  evidence,  that  she  has  been  ex- 
cluded from  society  on  account  of  her  husband's  habits  of 
intoxication,  and  that  such  intoxication  has  been  in  part  pro- 


324  MEASURE    OF   DAMAGES. 

duced  by,  etc.,  or  tliat  she  has  suffered  mental  aiignish  and 
shame  on  account  of  his  drunkenness,  and  that  this  has  been 
caused  in  whole  or  part  by,  etc.,  then  these  facts  may  be  taken 
into  account,  in  detei-mining  whether  or  not,  you  should  give 
exemplary  damages.  Friend  vs.  Dunks^  37  Mich.,  25;  See 
Broionford  vs.  Swineford,  44  Wis.,  282;  Boyer  vs.  Barr,  8 
ITeb.,  68. 

Note. — In  Michigan  it  has  been  held  that  the  foundation  of  the  exem- 
plary damages  rests  upon  the  wrong,  dene  willfully  or  wantonly,  to  the 
complaining  party  herself.  Gimsley  vs.  Perlrins,  30  Mich.,  492.  Under 
the  Iowa  Statute  it  has  been  held  that  the  allowance  of  exemplary  damages 
rests  entirely  in  the  discretion  of  the  jury,  and  they  are  not  limited  to  cases 
ol  tort.  Goodenough,  vs.  McCren\  44  la.,  670.  In  Indiana  it  has  been  held 
that  exemplary  dam  ges  cannot  be  given  in  any  case  where  the  sale  is  made 
under  circumstances  rendering  it  a  penal  offense.  Koerner  vs.  Oberly,  56 
Ind.,  284. 

§  4.  Damages  from  Intoxication  Other  than  by  Death. — If  you 
believe,  from  the  evidence,  that  the  husband  of  the  plaintitf 
before  his  death  was  in  such  circumstances  that  the  plaintitt", 
as  his  wife,  required  the  proceeds,  or  a  part  of  the  proceeds^ 
of  his  daily  labor  for  her  support,  then  she  was  entitled 
to  this  support  out  of  his  daily  labor;  and  if  you  further 
believe,  from  the  evidence,  that  while  she  was  entitled  to  such 
support  the  defendant  sold  him  intoxicating  liquors  from 
time  to  time  which  caused  his  intoxication  (or  contributed 
to  such  intoxication)  and  that  the  plaintiff  was  thereby 
deprived  of  her  means  of  support  in  whole  or  in  part,  then 
the  defendant  would  be  liable  to  respond  in  damages  to  the 
amount  of  the  support  he  so  deprived  her  of.  Schneider  vs. 
Hosier,  11  Ohio  St.,  98. 

Every  man  who  has  a  wife  owes  her  maintenance  and  sup- 
port, and  if  his  only  means  of  affording  such  support  is  out  of 
his  daily  labor,  then,  if  a  person  sell  bim  intoxicating  drinks 
so  as  to  produce  intoxication  and  thereby  renders  him  unfit 
for  labor  and  prevents  him  from  pursuing  liis  only  means  for 
the  support  of  his  wife,  such  person  is  liable  to  the  wife  for 
the  loss  thus  sustained  by  her.     Ibid. 

§  5.  Personal  Iiy'ury. — The  jury  are  further  instructed,  that 
if,  under  the  evidence  and  the  instructions  of  the  court,  they 
find  the  defendant  guilty,  then,  in  estimating  the   plaintiff's 


MEASUKE    OF    DAMAGES.  325 

damages,  if  any  are  proved,  they  have  a  right  to  take  into 
consideration  the  personal  injury  inflicted  upon  the  plaintiff — 
the  pain  and  suffering  undergone  by  him  in  consequence  of  his 
injuries,  if  any  are  ])roved,  and  also  any  pernianent  injury 
sustained  by  him,  if  the  jury  believe,  from  the  evidence,  that 
the  plaintiff  has  sustained  such  permanent  injury  from  the 
wrongful  acts  complained  of.  Collins  et  ux.  vs.  The  City, 
etc.,  33  la.,  321;  llolhrooh  et  at.  vs.  The  U.  &  S.  Rd.  Co.,  2 
Kern.,  236;  titeamer  N.  W.  vs.  King,  16  IIow.,  472;  Ilusa 
et  ux.  vs.  iSteamJjoat   War  Eagle,  14  la.,  3G3. 

If,  under  the  evidence  and  instructions  of  the  court,  the 
jury  find  the  defendant  guilty,  then,  in  assessing  the  plaintiff's 
damages,  the'.jury  may  talce  into  consideration  not  only  the 
loss,  expenses  and  injmediate  damage  arising  from  the  injuries 
received  at  the  time  of  the  accident,  but  also  the  permanent 
loss  and  damage,  if  any  is  proved,  arising  from  any  disability 
resulting  to  the  plaintiff  from  the  injury  in  question,  which 
renders  him  less  cajiable  of  attending  to  his  business  than  he 
would  have  been  if  the  injury  had  not  been  received.  Indian- 
apolis vs.  Gaston,  58  Ind.,  224;  Morris  vs.  Chicago,  etc.,  R.  R. 
Co.,  45  la.,  29. 

The  jury  are  instructed,  that  if  they  find  the  defendant  guilty, 
under  the  testimony  and  instructions  of  the  court,  then  in 
assessing  the  plaintiff's  damages,  the  jury  may  take  into  consid- 
eration not  only  the  bodily  disability  occasioned  by  the  accident, 
if  any  is  proved,  but  also  any  impairment  of  plaintiff's  mental 
faculties  and  general  health,  if  any  such  is  proved,  and  which 
the  jury  believe,  from  the  evidence,  will  affect  or  impair  his 
future  ability  to  attend  to  his  ordinary  business  the  same  as  if 
the  injury  complained  of  had  not  occurred.  111.  Cent.  Rd. 
Co.  vs.  Reed,  37  111.,  484;  Morris  vs.  C,  B.  d:  Q.  Ry.  Co., 
45  la.,  29. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff" 
has  been  injured  in  health  of  body  or  strength  of  limb,  or  in 
his  ability  to  labor  and  attend  to  his  affairs,  and  generally  pur- 
sue the  course  of  life  as  he  might  otherwise  have  done,  as  well 
since  as  before  the  accident,  and  if  the  jury  further  believe, 
from  the  evidence,  that  such  injuries  were  inflicted  upon  him 
through  the  negligence  or  carelessness  of  defendant's  servants 
or  employes,  as  charged  in  the  declaration,  and  that  the  plaintiff 


326  MEASURE    OF    DAMAGES. 

was  at  the  time  exercising  all  reasonable  care  and  caution  to 
avoid  such  injuries,  then  the  jury  may  assess  such  damages  as 
■will  recomj'.ense  to  the  plaintiff  all  the  loss  he  may  have  sus- 
tained, as  a  necessary  result  of  such  injuries,  as  shown  by  the 
evidence.    Itidianapolis  vs.  Gaston,  58  Ind.,  22-i. 

If,  under  the  evidence  and  instructions  of  the  court,  the  jury 
find  the  defendant  guilty,  then,  in  estimating  the  plaintiff's 
damages,  it  will  be  projjer  fur  the  jury  to  consider  the  effect 
of  tlie  injury  in  future  upon  the  plaintiff's  health,  if  they  be- 
lieve, from  the  evidence,  that  his  future  health  will  be  affected 
by  the  injury  in  question ;  and  also  the  use  of  his  hand,  and 
liis  ability  to  attend  to  his  affairs  generally,  in  pursuing  his 
ordinary  trade  or  calling,  if  the  evidence  shows  that  these  will 
be  affected  in  the  future;  and  also  the  bodily  pain  and  suffer- 
ing, the  necessary  expenses  of  nursing  and  medical  care  and 
attendance,  and  loss  of  time,  so  far  as  these  are  shown  by  the 
evidence ;  and  all  damage,  present  or  future,  which,  from  the 
evidence,  can  be  treated  as  the  necessary  i-esult  of  the  injury 
complained  of.  Jll.  Cent.  Rd.  Go.  vs.  Reed,  37  111.,  iSi;  Wha- 
len  vs.  St.  Louis,  etc.,  Rd.  Go.,  60  Mo.,  323. 

In  determining  the  amount  of  damages  the  i~)laintiff  is  enti- 
tled to  recover  in  this  case,  if  any,  the  jury  have  a  right  to, 
and  they  should,  take  into  consideration  all  the  facts  and  cir- 
cumstances in  evidence  before  them;  the  nature  and  extent  of 
the  plaintiff''s  physical  injuries,  if  any,  testified  about  by  the 
witnesses  in  this  case;  her  suffering  in  body  and  mind,  if  any, 
resulting  from  such  injuries;  and  also  such  prospective  suffer- 
ing and  loss  of  health,  if  any,  as  the  jury  may  believe,  from 
all  the  evidence  before  them  in  this  case,  she  has  sustained  or 
will  sustain  by  reason  of  such  injuries.  H.  &  St.  J.  R.  R. 
Go.  vs.  Martin,  111  111.,  227;  G.,  B.  dc  Q.  R.  R.  vs.  Warner, 
108  111.,  545. 

If  the  jury  believe,  from  the  evidence,  under  the  instruction 
of  the  court,  that  the  plaintiff  is  entitled  to  recover,  then,  in 
fixing  the  damaaes  which  he  ought  to  recover,  the  jury  should 
take  into  consideration  all  the  circumstances  surrounding  the 
case,  so  far  as  these  are  shown  by  the  evidence,  such  as  the 
circumstances  attending  tlie  injury;  the  loss  of  time  of  the 
plaintiff,  if  any,  occasioned  by  the  injury;  the  pain  he  has  suf- 
fered, if  any;  the  money  he  has  expended,  if  any,  to  be  cured 


MEASURE    OF    DAMAGES.  327 

of  sncli  injury;  tlie  business  he  was  engaged  in,  if  any,  at  tlie 
time  he  was  injured,  and  the  extent  and  duration  of  the  injury, 
and  give  the  plaintiff  such  damages  as  the  jury  believe,  from 
the  evidence,  he  has  sustained.  Sedg.  on  Meas.  of  Damages, 
618;  C,  R.  I.  c&  P.  Ed.  Co.  vs.  Otio,  52  111.,  410;  Little  vs. 
Tingle,  20  Ind.,  168. 

§  6.  Exemplary  Dama.i^es — Tn  Tort  Generally. — The  jury  are 
instructed,  that  in  actions  of  this  kind,  if  the  jury  iind  the 
defendant  guilty,  under  the  evidence  and  instructions  of  the 
court,  and  if  they  further  find,  from  the  evidence,  that  the 
injury  com[)lained  of  was  inflicted  willfully  or  maliciously,  and 
that  the  plaintiff  has  sustained  any  actual  damage  thereby, 
then  the  jury,  in  assessing  damages,  are  not  lim'tjd  to  mere 
compensation  for  the  actual  damige  sustainod,  but  they  may 
give  hitn  such  further  sum,  by  way  of  exem  jlary  or  vindictive 
damages,  as  a  protection  to  the  plaintiff,  and  as  a  salutary  ex- 
ample to  others,  to  deter  them  from  offending  in  like  manner. 
Pike  vs.  Dllliii'j,  48  Me.,  539;  Mg  Williaras  vs.  Bragg,  3 
Wis.,  424;  DllMe  vs.  Morris,  26  Conn.,  416;  Ousley  vs.  Har- 
din, 23  111.,  403. 

§  7.  Assault. — If  the  jury  believe,  from  the  evidence, 
under  the  instruction  of  the  court,  that  the  plaintiff"  is  entitled 
to  recover  in  this  case,  then,  in  assessing  his  damages,  the 
jury  are  at  liberty  to  take  into  account  the  extent  of  plaintiff's 
injuries,  so  far  as  they  liave  bjen  shown  by  the  evidence^ 
the  pain  and  suffering  endure  1  by  him,  if  any,  in  consequence 
of  such  injuries,  his  loss  of  tim3,  and  the  costs  of  medical 
attendance,  if  such  loss  of  time  and  costs  have  been  proved,  and 
award  such  damiges  as  the  jury  miy  think  proper  and  right, 
in  view  of  all  the  facts  and  circumstances  proved  on  the 
trial. 

§  8.  Exemplary  Damages  in  Assault. — The  jury  are  further 
instructed,  that  if,  under  the  evidence  and  the  instruction  of 
the  court,  they  find  the  defeniants,  or  any  of  them,  guilty  of 
assault  and  battery,  and  that  such  assault  and  battery  was  un- 
provoked by  the  plaintiff,  and  was  maliciously,  willfully  and 
wantonly  committed  on  the  plaintiff,  and  that  the  plaintiff  was 


328  MEASURE    OF    DAMAGES. 

seriously  injured  and  damaged  thereby,  then  the  jury  in  fixing 
the  amount  of  the  plaiutiii's  damages  are  not  eondned  to  the 
actual  damage  proved,  but  they  may  give,  in  addition  thereto, 
such  exem  )lary  damigas  or  smart  monoy,  as,  in  their  judg- 
ment, will  be  just  and  proper,  as  a  punishment  to  the  defend- 
ant, in  view  of  all  tlie  facts  and  circamstauoss  proved  on  the 
trial. 

If  the  defendant,  without  provocation,  a-saulted  and  bo:u 
the  plaintiff,  as  charged  in  the  declaration,  and  that  such 
assault  was  a  malicious,  wanton  and  aggravated  one;  and  if 
the  jury  further  believe,  from  tlie  evidence,  that  justice  and 
the  public  good  require  it,  then  the  law  is,  that  the  jurj'  are 
not  confined  in  their  verdict  to  the  actual  damages  jjroven, 
but  they  may  give  exemplary  damages,  not  only  to  compensate 
the  plaintiff,  but  to  punish  the  defendant,  and  to  deter  others 
from  the  commission  of  like  offenses.  Bradshaw  vs.  Bach- 
anan^  50  Tex.,  492;  Titus  vs.  (7c'r7iT;i,s,  21  Kans.,  722;  Brown 
vs.  Swineford,  44  Wis.,  282. 

While  the  jury  are  not  authorized  by  law  to  give  exemplary 
or  punitive  damages  in  this  case  in  the  event  a  verdict  is  found 
for  the  plaintiff,  yet,  if  the  jury  find  for  the  plaintiff,  full 
compensatory  damages  should  be  awarded;  and,  in  arriving  at 
compensatory  damages,  the  jury  are  not  necessarily  restricted 
to  the  naked  pecuniary  loss;  for,  besides  damages  for  pecun- 
iary loss  or  injury,  the  jury  may  allow  such  damages  as  are 
the  direct  consequence  of  the  act  complained  of,  for  injury  to 
the  plaintiff's  good  repute,  her  social  position,  for  pliysical 
suffering,  bodily  pain,  anguisli  of  mind,  sense  of  sliame,  humil- 
iation and  loss  of  honor.  Wolf  v&.  Trbikle^  103  Ind.,  355; 
3  N.  E.  Kep.,  110. 

§  9.  Aj?gravrttion  of  Damages. — That,  in  an  action  of  assault 
and  battery,  the  insult  and  indignity  inflicted  upon  a  person, 
by  giving  him  a  blow  with  anger,  rudeness  or  insolence,  con- 
stitute an  element  of  damages.  And  in  this  case,  if  the  jury 
believe,  from  the  evidence,  that  the  defendant  committed  an 
assault  upon  the  plaintiff,  as  charged  in  the  declaration,  then 
the  jury,  in  assessing  damages,  maj-  consider,  as  an  aggrava- 
tion of  the  wrong,  the  mental  suffering  and  mortification  of 
feeling  of  the  plaintiff,  arising  from  the  insult  and  indignity 
of  the  defendant's  blow.     Elliott  vs.  Van  Buren,  33  ]\[ich.,  40. 


MEASUllE    OF    DAMAGES.  329 

§  10.  Mitis;:ition  of  Dama.*?es. — The  jury  are  instructed,  that 
while  angry  and  threatening  words,  and  abusive  language,  are 
no  justification  for  an  assault  and  battery,  still  they  may  be 
considered  by  the  jury  in  mitigation  of  damages,  if  it  ai)i)ears 
from  the  evidence  that  they  were  used,  and  were  of  such  a 
character  as  wunld  naturally  tend  to  excite  the  angry  i)assions 
of  men,  and  were  spoken  so  recently  before  the  assault  com- 
plained of  as  that  the  hot  blood  and  passion  which  they  were 
calculated  to  excite  had  not  had  time  to  cool.  Thrall  vs. 
Knapi)^  17  la.,  AA'i;  I'ullerlon  vs.  Warrick,  3  Biackf.,  219. 

§  11.  Exemplary  Damages  not  Allows  1,  When. — Though  the 
jury  should  believe,  from  the  evidence,  that  the  defendants, 
or  some  of  them,  committed  the  trespasses  complained  of,  still, 
if  the  jury  further  believe,  from  the  evidence,  that  such  de- 
fendant or  defendants  believed  tliat  in  so  doing  they  weie 
only  asserting  wdiat  they  deemed  to  be  a  legal  right,  and  did 
not  act  oppressively,  wantonly  or  maliciously,  then  the  jury 
should  only  assess  such  sum  as  damages  as  they  believe,  from 
the  evidence,  the  plaintiff  has  actually  sustained. 

While  intoxication,  of  itself,  is  no  excuse  for  an  unlawful 
act  committed  while  under  its  influence,  still  it  may  be  consid- 
ered by  the  jury  in  its  bearing  upon  the  question  of  damages. 
And,  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
an  assault  was  committed  by  defendant,  as  chaiged,  still,  if 
they  further  believe,  from  the  evidence,  that  the  defendant 
was  so  intoxicated  at  the  time  that  he  did  not  know  and  realize 
what  he  was  doing,  and  that  when  not  under  the  influence  of 
intoxication  the  defendant  is  a  quiet  and  peaceable  citizen, 
then  these  facts  may  be  considered  by  the  jury,  with  all  the 
other  evidence  in  the  case,  in  determining  whether  he  ought 
to  be  made  to  pay  smart  money,  over  and  above  the  actual 
damages  proved. 

§  12.  Landlord  and  Tenant — Premises  not  Ocenpied — Xo  Rent 
Paid. — The  court  instructs  the  jury,  tliat  if  they  believe,  from 
the  evidence,  under  the  instructions  of  the  court,  that  the 
plaintiff"  has  a  right  to  recover;  and  if  the  jury  further  believe, 
from  the  evidence,  that  the  plaintiff'  has  paid  no  rent  for  the 
preniises  in  controversy,  then  the  measure  of  damages  will  be 


330  MEASURE    OF    DAMAGES. 

the  difference  between  the  rent  ao:reed  to  be  paid  for  the  use 
of  the  land  and  the  real  value  of  the  use  of  the  laud,  as  shown 
by  the  evidence. 

Tlie  court  further  instructs  the  jury,  that  the  rent  agreed  to 
be  paid  for  the  use  of  the  land,  as  fixed  in  the  lease,  is  pre- 
sumed to  be  the  true  value  of  the  use  of  said  premises,  unless 
the  evidence  shows  it  to  be  otherwise ;  and  the  agreed  price 
must  be  tak  n  by  the  jury  as  the  true  rental  value  of  the 
premises,  for  the  purposes  of  this  suit,  unless  the  jury  believe, 
from  the  evidence,  that  the  true  rental  value  is  more  than  the 
price  agreed,  to  be  paid  therefor  by  the  plaintiff. 

The  measure  of  damages,  in  a  case  of  this  kind,  is  the  dif- 
ference beUveen  the  price  agreed  to  be  paid  for  the  use  of  the 
premises,  not  occupied,  and  the  actual  rental  vahie  of  the  same 
premises,  if  they  had  been  occupied,  as  stipulated  in  the  lease; 
and  unless  the  jury  believe,  from  the  evidence,  that  the  actual 
value  of  the  premises  was  more  than  the  rent  agreed  to  be 
paid  therefor,  then  the  plaintiff,  in  any  event,  is  only  entitled 
to  recover  nominal  damage's,  and  such  special  damage  as  the 
jury  believe,  from  the  evident j,  the  plaintiU  has  sustained  by 
reason  of,  etc. 

§  13.  Suit  on  Replevin  Bond. — The  jury  are  instructed,  that 
although  this  action  is  in  form  an  action  of  debt,  for  the  sum 

of   § ,  the   penalty  in    the  bond,  the  action    is,  in  fact,  an 

action  to  recover  for  the  damages  alleged  to  have  been  sus- 
tained by  the  plaintiff,  by  reason  of  the  property  mentioned  in 
said  bond  not  having  been  returned  to  the  defendant  in  the 
replevin  suit,  according  to  tlie  condition  of  the  bond. 

And  if  the  jury  find  the  issues  for  the  plaintiff,  they  should, 
by  their  verdict,  find  both  the  debt  and  the  amount  of  the  dam- 
ages; the  debt  will  be  $ ,  the  penalty  mentioned  in  the  bond, 

while  the  damages  will  be  such  an  amount  as  the  evidence  shows 
the  parties,  for  whose  use  this  suit  is  brought,  have  sustained 
by  reason  of  the  non-return  of  said  property,  according  to  the 
condition  of  said  bond. 

The  jury  are  instructed,  that  if  they  find,  from  the  evidence, 
under  the  instructions  of  the  court,  that  the  plaintiff  is  entitled 
to  a  verdict,  and  that  the  parties  for  whose  use  the  suit  is 
brought  have  sustained  damage,  as  alleged,  then  it  will  be  the 


MEASURE    OF   DAMAGES.  331 

duty  of  the  jury  to  assess  the  amount  of  such  damao^es;  and  if 
the  jury  furtlier  believe,  from  tlie  evidence,  that  the  said  T. 
M.  B.  was  sheriff  of  this  county  at  the  time  the  said  ]:)roperty 
was  taken,  and  that  the  said  sheriff  was  then  lioldinp:  tlie  said 
property,  under,  and  by  virtue  of,  a  writ  of  attacliment  in  favor 
of  the  other  defendants  in  the  replevin  suit,  for  an  indebted- 
ness claimed  to  be  due  to  them  by  one  J.  F.,  and  that  a  judf^- 
ment  was  afterwards  rendered  in  said  attachment  suit  for  the 
sum  of  {four  thousancT)  dollars,  in  favor  of  the  ])laintiffs  in 
that  suit,  then  the  measure  of  damages  in  this  case  is  the  said 
sum  of  {four  thousand)  dollars,  and  interest  thereon,  at  the 
rate  of  six  per  cent,  per  annum,  since  the  date  of  eaid  judgment, 
and  the  further  sum  of  {tioenty)  dollars,  defendant's  costs  in  the 
f  aid  replevin  suit;  provided,  however,  that  if  the  jury  believe, 
from  the  evidence,  that  the  value  of  the  proi)erty  taken  by  the 
said  J.  E.,  in  the  replevin  suit,  was  worth  less  tlian  the  amount 
of  said  judgment,  interest  and  costs,  then  the  measure  of  dam- 
ages, in  this  suit,  will  be  the  vahie  of  such  property,  as  shown 
by  the  evidence,  and  no  more.  Sedg.  on  the  Meas.  of  Dam., 
58.5;  Jennings  vs.  Johnson,  17  Ohio,  15-1;  JSfolle  vs.  -Epperhj, 
6  Ind.,  468;  Hayden  vs.  Anderson,  17  la.,  158. 

The  court  instructs  the  jury,  that  if  you  fmd  the  issues  for 
the  plaintiff,  and  believe,  fi'om  the  evidence,  that  the  property 
in  question  was  the  property  of  E.  L.  "W.,  the  defendant  in 
the  execution,  at  the  time  it  was  taken  by  the  sheriff,  then  in 
estimating  the  amount  of  damages  in  this  suit,  you  should  as- 
certain the  amount  remaining  unpaid  upon  the  judgment  in 
the  case  of  J.  G.  vs.  the  said  E.  L.  W".,  for  princiiial,  interest 
and  costs,  as  shown  by  the  evidence,  calculating  interest  at  the 
rate  of  six  per  cent,  per  annum,  from  the  date  of  said  judg- 
ment; and  then,  if  you  believe,  from  the  evidence,  that  the 
amount  thus  found  to  be  due  upon  the  judgment  is  less  than 
the  value  of  the  property  in  question,  you  will  find  as  damages, 
in  this  case,  the  sum  remaining  due  upon  said  judgment,  as 
shown  by  the  evidence. 

On  the  other  hand,  if  you  find  the  amount  remaining  unpaid 
upon  said  judgment  to  be  equal  to  or  greater  than  the  value 
of  the  property  in  question,  then  you  will  find  as  damages,  in 
this  suit,  the  value  of  said  property  as  shown  by  the  evidence, 
at  the  time  it  was  taken  from  tiie  sheriff',  with  interest  thereon 
at  the  rate  of  six  per  cent,  per  annum. 


332  MEASUEE    OF    DAMAGES. 

§  14.  Libel. — If  the  jury  believe,  from  the  evidence,  that 
the  libel  was  published  bj  the  defendant,  as  chai'ged  in  the 
declaration,  then  the  plaintiff  is  entitled  to  recover.  The 
amount  of  the  recovery  is  to  be  determined  by  the  jury,  from 
a  consideration  of  all  the  evidence  and  circumstances  proved 
in  the  case;  and  in  determining  such  amount,  the  jury  will 
consider  the  character  of  the  charge,  the  general  reputation 
of  the  plaintiff  at  the  time  of  the  publication  complained  of, 
whether  the  defendants  had  an  opportunity  to  retract  the 
charge,  whether  it  was  maliciously  made  and  persisted  in,  or 
whether  made  as  public  journalists  and  for  laudable  purposes 
and  without  malice,  and  all  the  facts  proved  in  the  case,  hav- 
ing a  reference  to  this  subject.  Sheahan  et  al.  vs.  Collins,  20 
III,  325. 

If  the  jury  find  the  issues  for  the  plaintiff,  and  believe,  from 
the  evidence,  that  the  publication  was  made  maliciously  or 
wantonly,  and  under  circumstances  evincing  a  disregard  of  the 
rights  of  others,  then,  in  making  up  their  verdict,  thej'  u^ay 
take  into  consideration  the  circumstances  of  the  defendant  as 
to  wealth  and  possession  of  property,  so  far  as  these  a]:) pear, 
from  the  evidence,  and  they  may  give  a  verdict  for  such  sum 
as,  from  the  evidence,  they  think  the  plaintiff  ought  to  receive, 
and  the  defendant  ought  to  pay,  under  all  the  circumstances 
of  the  case.  Hill,  on  Rem.  for  Torts,  456;  Hunt  vs.  Bennett, 
19  K.  T.,  173;  Knight  vs.  Foster,  39  K  H.,  576;  Humphries 
vs.  Parker,  52  Me.,  502. 

Although  you  may  believe,  from  the  evidence,  that  the 
alleged  article  is  libelous  and  was  published  of  and  concerning 
the  plaintiff,  and  that  the  defendant  was  guilty  of  its  publica- 
tion, still,  if  you  further  believe,  from  the  evidence,  that  the 
plaintiff  sustained  no  actual  or  substantial  injury  to  his  feel- 
ings, occupation  or  business  thereby,  and  that  the  defendant 
vt^as  not  actuated  by  malice,  in  fact,  against  the  plaintiff",  in 
the  publication,  then  the  plaintiff  can  only  recover  nominal 
damages. 

The  amount  of  damages  in  a  case  of  this  character,  should  you 
find  that  any  ought  to  be  allowed,  depends  upon  the  question 
of  malice,  express  or  implied,  and  you  are  to  bear  in  mind 
that  malice  in  law,  which  is  presumed  from  the  ]Miblication  of 
a  libelous  article,  means  an  absence  of  sufiicient  legal  excuse 


MEASURE    OF    DAMAGES.  066 

for  such  publication,  and  in  such  cases,  if  there  was  no  (nalice, 
in  fact,  you  can  only  assess  compensatory  damages — that  is, 
such  damages  only  as  will  comjiensate  the  ]>laintifl  for  the 
injury  which  you  may  believe,  from  the  evidence,  he  has  sus- 
tained. 

The  jury,  if  they  find  the  defendant  guilty,  must  exercise  a 
sound  discretion  as  to  the  amount  of  damages  to  be  assessed 
for  plaintiff,  and  in  estimating  them,  the  jury  are  entitled  to 
consider  the  motives  of  the  defendant,  so  far  as  they  appear 
from  tlie  evidence,  that  is  as  to  whether  they  were  malevolent 
and  show  a  settled,  deliberate  purpose  to  humiliate,  injure  or 
disgrace  the  i)laintiff,  and,  if  the  jury  so  find,  they  may  assess 
the  daiiij^ges  at  any  amount,  such  as  they  may  think  will  prop- 
erly com;  cnsate  the  plaintiff  and  properly  punish  the  defend- 
ant in  view  of  all  the  circumstances  proved  on  the  trial. 

§  15.  Malpractice. — If  the  jury  find,  under  the  evidence 
and  the  instructions  of  the  court,  that  the  plaintiff  is  entitled 
to  recover,  then,  in  fixing  the  amount  of  damages,  they  should 
take  into  account  the  present  and  future  loss  of  the  plaintiff's 
hand,  if  any  such  loss  has  been  proved,  as  well  as  compen- 
sation for  the  pain  and  suffering  endured  by  the  plaintiff  in 
consequence  of  the  want  of  skill,  care  and  diligence  of   the 

defendant ,  as  shown  by  the  evidence,  and  as  charged 

in  the  declaration,  if  the  proof  shows  such  loss  and  suffering 
was  enuiircd  in  consequence  of  the  fault  of  the  defendant. 

§10.  Breach  of  Marriage  Contract. — The  jury  are  instructed, 
that  in  assessing  damages  for  the  breach  of  a  marriage 
contract,  the  general  rule  is,  that  the  jury  may  take  into  con- 
sideration all  the  injury,  which  the  evidence  shows  the 
plaintiff  has  sustained,  and  no  more;  and  in  this  case,  if  the 
jury  find  the  issues  for  the  plaintiff,  the  jury  may  take  into 
consideration  the  chai'acter  and  habits  of  the  plaintiff,  so  far 
as  they  are  proved  by  the  evidence  ;  and  if  the  jury  believe, 
from  the  evidence,  that  at  the  time  of  the  alleged  breach  of 
contract,  the  plaintiff  was  addicted  to  lewdness,  drunkenness, 
or  to  the  use  of  profane  language,  then  these  circumstances 
should  be  considered  by  the  jury  in  estimating  the  injuries 
sustained  by  her.  Sedg.  on  Mcas.  of  Dam.,  428;  Burnett  vs. 
Slmpkins,  24  111.,  264. 


334  MEASURE    OF    DAMAGES. 

If  the  jury  Lclieve,  from  the  evidence,  that  the  defendant 
entered  into  a  marriage  contract  M-ith  the  plaintiff,  and  also 
that  he  did  seduce  her,  then  they  have  a  right  to  determine^ 
from  all  the  facts  and  circumstances,  whether  snch  seduction 
was  consequent  upon  the  promse  of  marriage,  and  if  they  so 
lind,  then  the  seduction  may  be  taken  by  the  jury  in  aggrava- 
tion of  the  damages  in  this  case,  provided  they  find  for  the 
plaintiff  under  the  first  {or  other  appropriate)  count  of  the 
declaration. 

In  this  suit,  if  the  jury  believe,  from  the  evidence,  that  the 
defendant  entered  into  a  marriage  contract  with  the  plaintiff, 
and  afterwards  refused  to  carry  out  the  same,  as  charged  in 
the  declaration,  and  farther,  that  the  defendant,  under  such 
promise  of  marriage,  seduced  the  plaintiff  and  begot  her  with 
child,  then  that  circumstance  may  be  taken  into  account  by  the 
jury  in  estim^.ting  the  plaintiff's  damages.  TuUbs  vs.  Van 
Kleel,  12  111.,  446;  Sheahan  vs.  Barrij,  27  Mich.,  217;  Will- 
iaiiis  vs.  IlolUngsworth^  6  Baxt.  (Tenn.),  12;  Wilde  vs.  Bagan, 
57  Ind.,  453. 

If  the  jury  b3lieve,  from  the  evidence,  that  the  defendant 
entered  into  a  marriage  contract  with  the  plaintiff,  within  five 
years  before  the  commencement  of  this  suit,  and  that  under 
the  pretense  of  such  promise  of  marriage,  he  seduced  and  got 
the  plaintiff  with  child,  and  then  neglected  and  refused  to 
marry  the  plaintiff,  these  circumstances  and  such  violation  of 
faith  may  be  taken  into  consideration  by  the  jury  in  estimat- 
ing the  plaintiff's  damages. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant  in 
this  case  has  attempted  to  prove  that  the  plaintiff  was  a  lewd 
or  base  woman,  and  was  of  immoral  or  bad  character,  and  that 
he  has  failed  to  establish  and  prove  the  same  by  a  preponder- 
ance of  evidence,  and  that  such  attempt  was  not  made  in  good 
faitli,  orwas  made  without  any  reasonable  hope  or  expectation 
of  establishing  such  facts,  then  such  charge  and  failure  on  the 
part  of  the  defendant  may  be  taken  in  aggravation  of  the 
damages  in  this  case;  provided,  the  jury  find  the  issues  for  tlie 
plaintiff.  Sedg.  on  Meas.  of  Dam.,  427;  Fidler  vs.  McKinley 
21  111.,  308;  i)avis  vs.  Slagle,  27  Mo.,  600;  Denslow  vs.  Van 
Horn,  16  la.,  476. 

The  jury   are   instructed,  that   should   they    find   for    the 


MEASUKE    Oy   DAMAGES.  OoO 

plaintiff,  tliej  alone  are  the  judges  of  the  amount  of  damages 
to  be  found,  and  in  fixing  the  amount  of  such  damages,  the 
jury  may  take  into  consideration  the  length  of  time  tlie  parties 
were  acquainted,  the  degree  of  intimacy  existing  between 
them,  so  far  as  proved,  and  all  the  injuries  shown  to  have  been 
sustained,  whether  they  be  from  anguish  of  mind,  blighted 
affections,  or  disappointed  hopes,  and  fix  the  aniount  of  such 
damages  at  such  a  sum  as  they  think  ))roper,  under  the  evi- 
dence and  the  instruction  of  the  court.  Sedg.  on  Meas.  of 
Dam.,  235,  426;  Kniffen  vs.  McConnell,  30  N.  Y.,  2S5 ; 
KingyQ.  Kersey,  2  Ind.,  402;  Ro;per  vs.  Clay,   18  Mo.,  3S3. 

§  17.  Fraiul  and  Deceit. — The  jury  are  in:^tructed,  that  in  an 
action  founded  in  fraud  and  deceit,  if  the  jury  find  the 
defendant  guilty,  the  amount  of  recovery  is  not  necessarily 
confined  or  limited  to  the  actual  damages  sustained.  If  the 
fraud  or  deceit  is  shown,  by  the  evidence,  to  have  been  de- 
liberate, willful  and  wanton,  the  jury  are  at  liberty  to  give 
exemplary  or  punitive  damages,  in  addition  to  the  actual 
damages  sustained.     McAwy  vs.   Wright,  25  Ind.,  22. 

The  jury  are  instructed,  that  if  they  find  the  defendants,  or 
either  of  them,  guilty,  then  the  measure  of  the  actual  damage, 
if  any,  sustained  by  the  plaintiff,  is  the  difference  b.^twcen 
the  actual  value  of  the  property  in  question,  in  the  condition 
it  was  in  when  sold,  and  the  value  of  the  same  property  if  it 
had  been  as  stated  and  rejiresented  by  the  defendant,  at  the 
time  of  the  sale.  Sedg.  on  Meas.  of  Dam.,  338;  Tliompson  vs. 
Bicrgey,  36  Penn.,  403;  Page  vs.  Parl^er,  40  N.  II.,  47. 

§  18.  .Trespass  and  Trover. — The  court  instructs  the  jury, 
that  where  property,  taken  by  a  trespasser,  has  been  appro- 
priated to  the  owner's  use  by  his  consent,  either  expressed  or 
implied,  that  fact  should  go  in  reduction  of  damages. 

And  such  consent  is  always  implied  when  the  ])ruperty  has 
been  legally  seized  and  held  under  legal  process,  either  in  favor 
of  a  stranger  or  in  favor  of  the  trespasser  himself.  Bates  vs. 
Courtwright,  36  111.,  518. 

If,  under  the  evidence  and  the  instruction  of  the  court,  the 
jury  find  the  defendant  guilty  of  the  taking  and  conversion  of 
the  property  in  question,  in  manner  and  form  as  charged  in 


336  MEASURE    OF   DAMAGES. 

the  declaration,  then  the  measure  of  the  plaintiff's  damn^^cs  is 
the  value  of  the  property  at  the  time  of  the  conversion,  as 
shown  by  a  preponderance  of  the  evidence,  with  six  per  cent, 
interest  thereon,  fi-om  the  time  of  such  conversion.  Scdg.  on 
Meas.  Dam.,  547;  Tenner/  vs.  State  Banlc,  etc.,  20  Wis.,  152; 
Yates  vs.  Mullen,  24  Ind.,  277;  Folk  vs.  Allen,  19  Md..  467; 
Cutting  vs.  Fanning,  2  la.,  580;  Rejpley  vs.  Davis,  15  Mich., 
75. 

§  19.  AVork  and  Labor — Part  rerformance. — If  the  jury,  etc., 
that  the  plaintifE  worked  for  the  defendant,  as  claimed,  and 
tliat  such  work  was  done  under  a  special  contract,  as  to  the 
price,  and  that  the  plaintiff  went  on  and  jierformed,  under  that 
contract,  a  part  of  the  w^ork  so  contracted  for,  and  that  the 
defendant  accepted  the  work  done,  and  if  the  jury  hnd,  from 
the  evidence,  under  the  instructions  of  the  court,  that  the 
plaintiff  is  entitled  to  recover,  then  the  contiact  price  must 
govern  the  measure  of  compensation  to  Avhich  the  ]ilaintiff 
will  be  entitled  for  the  work  actually  done,  whether  such  price 
be  more  or  less  than  the  work  was  actually  worth. 

§  20.  Contract  to  Delivor — Part  Performance. — If  the  jury, 
etc.,  that  the  plaintiff  agreed  to  furnish  defendant  a  certain 
{qtiantity  of  stone),  at  a  given  price  per  {cord)  and  that  ho 
furnished  a  part  only  of  the  (stone),  but  not  the  whole  quantity 
contracted  for,  and  that  the  defendant  accepted  and  appropri- 
ated to  his  own  use  the  {sto7ie)  tlius  furnislied,  and  if  the  jury 
find,  from  the  evidence,  under  the  instruction  of  the  court, 
that  the  plaintiff  is  entitled  to  recover  anything,  then  the  jury 
are  instructed,  that  the  contract  price  must  govern  as  to  the 
]irice  of  the  (stojie)  actually  delivered,  wliether  such  price  be 
more  or  less  than  they  were  reasonably  worth.  MGClelland 
vs.  Snider,  18  111.,  58. 

§  21.  Refiisal  to  Deliver  Personal  Property. — In  this  cape,  if  the 
jury,  under  the  evidence  and  the  instruction  of  the  court,  find 
the  issues  for  the  plaintiff,  then  the  measure  of  damage  is  the 
difference  between  the  contract  price  and  the  market  price,  at 
the  place  of  delivery,  at  the  time  of  the  alleged  breach  of  con- 
tract complained  of.     And  in  ai  riving  at  the  amount  of  dam- 


MEASUKE    OF    DAMAGES.  337 

ages,  the  jury  will  estimate  the  qnantitj'  of  [Jiops)  which  has 
not  been  delivered,  and  give  the  difference  between  the  nuar- 
ket  price  and  the  contract  price  on  so  nuich  of  the  contract 
as  the  ]wYy  believe,  from  the  evidence,  remains  to  be  per- 
formed. Sedg.  on  Meas.  Dam.,  295;  Carney  vs.  Newherry^ 
24  111.,  203;  Bush  vs.  Holmes,  53  Me.,  417;  Cannon  vs.  Fol- 
som,  2  la.,  101;  Crosby  vs.  Watkins,  12  Cal.,  85;  Ze/iner  \s. 
Dale,  25  Ind.,  433. 

The  jury  are  further  instructed,  that  upon  a  breach  of  a 
contract  to  deliver  articles  of  personal  property,  at  a  particu- 
lar place,  within  a  certain  time,  at  a  certain  price,  and  when 
the  property  has  been  paid  for,  and  subsequently  delivered, 
but  not  delivered  within  the  specified  time,  the  measure  of 
damages  is  the  difference  in  the  value  of  the  property  at  such 
place,  at  the  time  of  actual  delivery,  and  its  market  value  at 
the  same  place   at  the  time  fixed  in  the  contract  for  delivery. 

If  the  jury  believe,  from  the  evidence,  that  a  contract  was 
entered  into  by  the  defendant,  as  alleged  in  plaintiff's  declara- 
tion, for  the  sale  of  {thirty  thousand  hricJc),  at  the  price  of  % — 
{per  thousand?),  to  be  delivered  on  demand,  and  that  the  ])laint- 
iff  demanded  said  brick,  as  claimed  by  him,  and  that  he  M^as 
then  ready  and  willing  to  pay  for  the  sam^^,  and  that  upon 
such  demand  the  defendant  refused  to  deliver  the  brick,  then, 
if  you  further  believe,  from  the  evidence,  that  the  market 
price  of  the  same  kind  of  brick,  at  the  time  and  place  of  such 
demand,  was  greater  than  the  contract  price,  the  measure  of 
damages  will  be  the  difference  between  such  market  price  and 
the  price  agreed  upon.     Sleuter  vs.  Wallhaum,  45  111.,  43. 

§  22.  Property  Bought  for  Re-Sale — If,  under  the  evidence 
in  the  case  and  the  instructions  of  the  court,  you  find  for  the 
p'aintiffs,  then,  upon  the  question  of  damages,  the  court  in- 
strncts  you  that  if  you  believe,  from  the  evidence,  that  at  the 
time  of  said  sale  the  plaintiffs  had  a  contract  for  the  re-sale  of 
said  hams  at  {Salt  Lake  City),  and  that  they  had  sold  the  same 
as  of  the  quality  aforesaid,  and  that  at  the  time  of  the  sale  to 
the  plaintiffs  the  defendants  had  knowledge  of  such  contract 
of  re-sale,  and  knew  that  the  ]i]aintiffs  purchased  said  hams  to 
fill  said  contract  of  re-sale,  and  that  the  hams  were  shipped  to 
the  purchaser  at  {Salt  Lahe)  before  the  plaintiffs  had  notice  of 
22 


338  MEASURE    OF    DAMAGES. 

their  quality,  and  that  upon  their  arrival  at  {Salt  Lale)  the 
said  purchasers  refused  to  receive  or  pay  for  the  same,  for  the 
reason  that  they  were  not,  at  the  time  of  their  shipment  to 
him,  of  the  quality  he  had  bargained  for,  then  you  will  award 
to  the  plaintiffs,  as  damages,  snch  sum  of  money  as  you  may 
believe,  from  the  evidence,  the  plaintiffs  had  re-sold  the 
said  hams  for,  less  such  sum  as  you  may  believe,  from  the 
evidence,  said  hams  were  actually  worth  at  the  time  of  their 
purchase  by  the  plaintiffs;  and  you  will  further  allow  the 
plaintiffs  such  sums  of  money,  if  any,  as  you  may  believe,  from 
the  evidence,  they  were  obliged  to  pay  out  on  account  of  the 
transportation  of  said  hams  to  {8alt  Lake  City).  Thome  vs. 
McVeagh,  85  III,  81;  Lewis  vs.  Roimtree,  79  N.  C,  122. 

§  23,  Refusal  to  Accept  Personal  Property. —  The  jury  are 
instructed,  that  the  rule  of  law  is,  that  when  a  purchaser  of 
personal  property  which,  by  the  terras  of  the  purchase,  is  to 
be  delivered  at  a  specified  time  and  place,  and  at  a  stijmlated 
price,  refuses  to  receive  and  pay  for  the  property,  and  no  part 
of  the  purchase  price  had  been  paid,  and  if  the  price  has,  in 
the  meantime,  declined,  then,  in  an  action  by  the  vendor  against 
the  vendee  for  refusing  to  comply  with  contract,  the  proper 
rule  of  damages  is  the  difl'erence  between  the  contract  price 
and  the  current  price  at  the  time  and  place  for  delivery,  as 
fixed  by  the  contract  of  sale  and  purchase.  McNaught  vs. 
Dodso'n,  49  III,  446. 

§  24.  Slander — Words  Actionable,  per  se. — If,  from  the  evi- 
dence, under  the  instructions  of  the  court,  the  jury  find  the 
defendant  guilty,  then  the  jury  are  to  determine,  from  all  the 
circumstances  of  the  case,  as  proved  on  the  trial,  what  dam- 
ages ought  to  be  given  to  the  plaintiff",  and  find  their  verdict 
accordingly.     1  Hill,  on  Torts,  408. 

If,  from  the  evidence,  under  the  instruction  of  the  court, 
vou  find  the  defendant  guilty,  then,  in  fixing  the  amount  of 
the  plaintiff's  damages,  you  may  take  into  consideration  the 
mental  suffering  produced  by  the  utterance  of  the  slanderous 
words,  if  you  believe,  from  the  evidence,  that  such  suffering 
has  been  endured  by  the  plaintiff;  and  the  present  and  prob- 
able future  injury,  if  any,  to   plaintifl''s  character,  which  the 


MEASURE    OF   DAMAGES.  339 

uttering  of  the  words  was  calculated  to  inflict.  Fry  vs.  Ben- 
nett^ 4t  Duer,  247;  True  vs.  Plunileij,  36  Me.,  406;  Swift 
vs.  Dickermann,  31  Conn.,  285;  Hamilton  vs.  Eno^  16  Hun, 
599;  Bait  vs.  Budwig,  28  K  W.  Eep.,  282. 

§  25.  Damages  Presumed,  When. — In  an  action  for  slander, 
the  law  implies  damages  from  the  speaking  of  actionable 
words.  And  also  that  the  defendant  intended  the  injury  the 
slander  is  calculated  to  effect.  And  in  this  case,  if  the  jury 
believe,  from  the  evidence,  and  under  the  instructions  of  the 
court,  that  the  defendant  is  guilty,  as  charged  in  the  declara- 
tion, then  they  are  to  determine,  from  all  the  facts  and  cir- 
cumstances proved,  what  damages  ought  to  be  given;  and  the 
jury  are  not  conlined  to  the  mere  pecuniary  loss  or  injury 
sustained.  Mental  suffering,  injury  to  reputation  or  character, 
if  proved,  are  proper  elements  of  damage.  Balder  vs.  Young^ 
44  111.,  42. 

§  26.  Pecxiniary  Circumstances  of  Defendant. — The  jury  are 
instructed,  that  if  they  find  the  defendant  guilty,  tlien,  in  fix- 
ing the  amount  of  plaintiff's  damages,  they  may  take  into  con- 
sideration, in  connection  with  all  the  other  evidence  in  the 
case,  the  pecuniary  circumstances  and  social  standing  of  the 
defendant,  and  the  character  and  standing  of  the  plaintiff,  so 
far  as  those  have  been  shown  by  the  evidence:  and  they  may 
also  take  into  consideration  the  fact,  if  proved,  that  the  de- 
fendant has  reiterated  the  slander  on  different  occasions  to 
different  persons.  Harhisoji  vs.  School,  41  111.,  141 ;  Ilum- 
phriesvQ.  Pai'Tter^  52  Me.,  502;  Lewis  vs.  Ghap7nan,  19  Barb., 
K  Y.,  252. 

§  27.  Plaintiff's  Bad  Reputation  may  be  Shown. — If  the  jury 
believe,  from  the  evidence,  that  the  plaintiff"'s  general  reputa- 
tion for  chastity  (for  honesty),  at  and  before  the  alleged 
speaking  of  the  words  in  question,  was  bad,  tlien  the  jury  have 
the  right  to  take  this  fact  into  account  in  assessing  the  plaint- 
ifl''s  damages,  in  case  you  find  the  defendant  guilty.  Duval  vs. 
Davey,  32  Ohio  St.,  604;  Maxwell  vs.  Kenedy.,  50  Wis.,  545. 

§  28.     Words  Spoken  in  Heat  of  Passion. — If  the  jury  believe, 


310  MEASURE    OF   DAMAGES. 

from  tlie  evidence,  tliat  any  of  tlie  slanderous  words,  charojed 
in  the  declaration,  were  spoken  by  tlie  defendant  in  tlie  Ijeat 
of  passion,  in  a  quarrel  or  altercation  provoked  bj  the  jlaint- 
iff,  then  the  jury  have  a  right  to  take  this  fact  into  considera- 
tion in  fixino;  the  amount  of  damages. 

If  the  jury  believe,  from  the  evidence,  that  the  slander- 
ous words  were  spoken  in  the  heat  of  passion,  provoked 
by  plaintiff,  and  were  spoken  in  the  presence  of  persons  well 
acquainted  with  the  plaiutitf,  and  were  not  cii-culated  by  de- 
fendant afterwards;  and  further,  that  the  plaintiff  has  not,  in 
fact,  been  injured  by  the  speaking  of  the  words,  then  the  facts 
may  be  taken  into  account  by  the  jury  in  fixing  the  amount 
of  plaintiff's  damages. 

§  29.  Drunkenness  in  Mitigation. — The  court  instructs  the 
jury,  that  if  you  find,  from  tlie  evidence,  that  the  defendant 
is  guilty  of  speaking  the  slanderous  words,  as  charged  in  the 
declaration;  that  the  defendant  was,  at  the  time,  intoxicated 
with  spirituous  liquors  to  such  an  extent  as  to  deprive  him  of 
the  rational  exercise  of  his  mental  faculties,  tiiis  fact  will  be 
proper  to  be  considered  by  the  jury  in  determining  whether 
the  defendant  was  prompted  in  speaking  the  words  by  malice,  in 
fact,  and  whether  he  ought  to  be  charged  with  exemplary  or 
punitive  damages.  Unveil  vs.  Howell,  10  Ired.  (jST.  C),  81; 
Gates  vs.  Jleredith,  7  Ind.,  110. 

§  30.  Plea  must  be  Filed  in  Good  Faitli. — If  the  jury  believe, 
from  the  evidence,  and  from  the  facts  and  circumstances 
]iroved  on  the  trial,  that  when  the  defendant  filed  his  plea  of 
justification,  he  had  no  reasonable  liope  or  expectation  of  prov- 
ing the  truth  of  it,  then,  if  the  jury  believe,  from  the  evidence, 
that  the  defendant  is  guilty  of  the  slander  charged  in  the  dec- 
laration, they  may,  in  fixing  the  amount  of  the  plaintiff's  dam- 
ages, regard  the  filing  of  the  plea  as  an  aggravation  of  the 
original  slander.  Ilarhison  vs.  Schook,  11  III,  111;  Swails  vs. 
Butcher,  2  Ind.,  81. 

Although  you  should  find,  from  the  evidence,  that  the  de- 
fendant has  not  sustained  his  plea  of  justification,  still  the  fact 
that  he  has  filed  such  plea  should  not  of  itself  be  regarded  by 
the  jury  as  an  aggravation  of  the  original  offense,  if  they  be- 


MEASUKE    OF   DAMAGES.  341 

lieve,  from  the  evidence,  that  it  was  filed  in  good  faith,  and 
with  an  honest  belief,  on  the  part  of  the  defendant,  that  he 
would  be  able  to  sustain  the  plea  by  evidence. 

§  31.  Exemplary  Damages  may  be  Given  in  Slander,  When. — If 
the  jury,  under  the  evidence  and  the  instructions  of  the  court, 
find  the  defendant  guilty  in  this  case,  in  assessing  the  plaint- 
iff's damages,  they  are  not  confined  to  such  damages  as  will 
simply  compensate  the  plaintiff  for  such  injuries  as  the  evi- 
dence shows  she  has  received,  by  reason  of  the  speaking  and 
publishing  of  the  defamatory  words  charged  in  the  declara- 
tion, but  they  may,  in  addition  thereto,  assess  against  the  de- 
fendant, by  way  of  punishment  to  him  and  as  an  example  to 
others,  such  damages  as  the  jury,  in  their  sound  judgment, 
under  all  the  evidence  in  the  case,  believe  the  defendant  ought 
to  pa}^,  not  exceeding,  in  any  event,  the  amount  of  damages 
claimed  by  the  plaintiff  in  the  declaration;  provided  the  jury 
believe,  from  the  evidence,  that  the  defamatory  words  were 
spoken  maliciously  or  wantonly  by  the  defendant.  Temple- 
ton  vs.  Graves,  59  Wis.,  95. 

If  the  jury  find  the  defendant  guilty,  they  should  then  de- 
termine, from  all  the  facts  and  circumstances  proved,  what 
damages  ought  to  be  given  to  the  plaintiff;  and  the  jury  are 
not  confined  to  the  mere  pecuniary  loss  or  injury,  but  they 
may  give  damages  as  a  punishment  to  the  defendant,  as  well 
as  to  compensate  the  plaintiff  for  the  stain  inflicted  u]ion  her 
character;  provided  the  jury  believe,  from  the  evidence,  that 
the  defendant,  in  speaking  the  defamatory  words,  was  actuated 
by  malice  in  fact. 

If  the  jury  believe,  from  tlie  evidence,  that  the  defendant 
is  guilty  of  uttering  the  slanderous  words  charged  in  the  dec- 
laration, then  they  may  take  into  consideration  the  pecuniary 
circumstances  of  the  defendant,  and  his  position  and  influence 
in  society,  so  far  as  those  matters  have  been  shown,  by  the 
evidence,  in  estimating  the  amount  of  damages  which  the 
plaintiff  ought  to  recover.     Hosley  \5.  BrooTxs^  20  111.,  115. 

Though  the  jury  may  beh'eve,  from  the  evidence,  that  the 
defendant  was  guilty  of  speaking  the  slanderous  words  charged 
in  the  declaration,  still,  if  the  jury  find,  from  the  evidence, 
that  the  words  were  spoken  without  actual  malice  on  the  part 


312  MEASURE    OF    DAMAGES. 

of  the  defendant,  though  under  cu-cumstances  showing  a  want 
of  caution  and  a  proper  respect  for  the  rights  of  the  plaintitf, 
and  that  the  plaintiff  has  suffered  no  special  damage  from  the 
speaking  of  the  words,  then  the  jury  should  only  give  com- 
pensatory damages,  and  in  such  case  compensatory  damages 
are  such  as  will  pay  the  plaintiff  for  his  expenses  and  trouble 
in  carrying  on  the  suit,  and  disproving  the  slanderous  words. 
Armstrong  vs.  Piersoii^  8  Clarke  (la.),  29. 

§  32.  Coniraon  Carriers — Lo3s  of  Baggage. — The  court  in- 
structs the  jury,  that  if  they  find  for  the  plaintiff  in  this  case, 
in  assessing  his  damages,  they  may  include  the  value  of  all 
such  articles  of  necessity  and  convenience  as  are  usually  carried 
by  passengers  for  their  personal  use  and  comfort,  instruction 
and  amusement,  or  protection,  having  regard  to  the  object  and 
length  of  the  journey  in  question,  and  which  are  sliown,  by 
the  evidence,  to  have  been  lost  by  the  defendant,  if  any  such 
loss  has  been  shown. 

§  33.  Goods  Lost.— The  jury  are  mstructed,  that  the  meas- 
ure of  damages,  in  case  of  a  failure  of  a  common  carrier  to 
deliver  goods  according  to  contract,  and  which  are  lost,  is  their 
market  or  actual  value  at  the  time  when,  and  the  place  where, 
they  should  liave  been  delivered;  and  such  value  is  purely  a 
question  of  fact  to  be  fixed  by  the  jury,  from  the  evidence  in 
the  case.     C.  &  N.  W.  By.  Co.  vs.  Dickinson,  74  111.,  249. 

§  34.  Damages,  How  Determined. — The  jury  are  instructed, 
that  a  party  suing  for  an  injury  received  can  only  recover  such 
damages  as  naturallj^  flow  from,  and  are  the  immediate  result 
of,  the  act  comi)lained  of.  The  jury  should  be  governed  solely 
by  the  evidence  introduced  before  them,  and  they  ])ave  no 
right  to  indulge  in  conjectures  and  speculations  not  supported 
by  the  evidence.  Indianapolis  JB.  <&  W.  lid.  Co.  vs.  Birnei/j 
n  111.,  391. 

If,  from  the  evidence  in  the  case,  and  under  the  instructions 
of  the  court,  the  jury  shall  find  the  issues  for  the  plaintiff,  and 
that  the  plaintiff'  has  sustained  damages,  as  charged  in  the 
declaration,  then,  to  enable  the  jury  to  estimate  tlie  amount  of 
such  damages,  it  is  not  necessar}'  that  any  witness  should 
have  expressed  an  opinion  as  to  the  amount  of  such  damage. 


MEASURE    OF    DAMAGES.  343 

but  tlio  jury  may,  tliemselves,  make  siicli  estimate  from  the 
facts  and  circumstances  in  proof,  and  by  considering  them  in 
connection  with  their  own  knowledge,  observation  and  exiie- 
rience  in  the  business  affairs  of  life.  Ottauoa  Gas  L.  Go.  vs. 
Graham,  28  111.,  73. 

§  35.  Exemplary  Damages — Tn  Trespass. — If  the  jury  believe, 
from  the  evidence,  that  a  trespass  was  committed,  as  charged 
in  the  declaration,  by  the  defendant,  or  his  sei'vants,  by  his 
direction,  in  a  wanton,  willful  and  insulting  manner,  and  that 
the  plaintiU  has  suffered  any  actual  damage  therefrom,  then 
the  jury  are  authorized  to  lind  exemplary  damages;  that  is, 
such  damages  as  will  com])ensate  the  p/laintitf  for  the  wrong 
done  to  him,  and  to  punish  the  defendant,  and  to  furnish  an 
example  to  deter  others  from  the  like  practices.  Sedg.  on 
Meas.  Dam.,  35;   Gutler  vs.  Smith,  57  111.,  252. 

In  action  of  trespass  to  persons  or  property,  when  the  evi- 
dence shows  the  trespass  to  have  been  malicious  and  willful, 
oppressive,  or  wantonly  reckless,  the  jury  may  give  what  are 
known  as  punitive  or  exemplary  damages.  III.  &  St.  L.  lid- 
Co.  vs.  Coh\  68  111.,  53. 

To  justify  the  recovery  of  exemplary  damages  for  a  tres- 
pass to  property,  it  must  be  shown,  by  the  evidence,  that  the 
defendant  was  actuated  by  malice  or  a  reckless  disregard  of 
the  plaintiff's  rights,  and  when  tM'O  are  sued,  and  one  of  them 
is  not  chargeable  with  malice  or  recklessness,  exemplary  dam- 
ages cannot  be  recovered  against  both.  Becker  vs.  Dajpree, 
75  111.,  167. 

§  36.  Exemplary  Damages  Defined. — Exemplary  damages 
mean  damages  given  by  way  of  punishment  for  the  commis- 
sion of  a  wrong  willfully  or  wantonly,  or  with  some  element 
of  aggravation.  They  are  not  the  measure  of  the  price  of  the 
property,  or  actual  damage  sustained,  but  they  are  given  as 
smart  money  in  the  way  of  pecuniary  punishment,  to  make 
an  example  for  the  public  good,  and  to  teach  other  persons 
not  to  offend  in  like  manner.     Bates  vs.  Davis,  76  111.,  222. 

Note. — This  increase  of  damag-es  dependent  upon  the  conduct  of  the 
defendant,  is  considered  in  some  states  as  actual  damage  given  for  the 
injury  to  \\i(t  feeJhtgs  of  the  complaining  party,  such  as  shame,  mental  anxi- 
ety, or  insulted  honor,  as  in  the  next  four  instructions. 


3i4  MEASUEE    OF   DAMAGES. 

§  37.  Malicious  Prosecution. — Tlie  jury  are  instructed,  that  if, 
from  the  evidence  and  instruction  of  the  court  you  find  the 
defendant  guilty,  tlicn  in  assessing  the  amount  of  the  plaintiff's 
damages  you  have  a  right  to  take  into  account  the  ]  eril  to 
which  defendant  was  subjected  of  losing  his  liberty,  and  also 
the  injury  to  his  reputation  and  feelings,  if  you  find  from 
the  evidence  that  he  was  injured  in  his  reputation  and  feelings 
by  the  charge  made  against  him.  Lavender  vs.  Hiidgens,  32 
Ark.,  763. 

The  jury  are  instructed,  that  in  actions  of  this  kind,  if  the 
jury  find  the  defendant  guilty  under  the  evidence  and  instruc- 
tions of  the  court,  and  that  the  plaintiii  lias  sustained  any  injury 
or  damage  by  reason  of  the  charge  brought  against  him,  then, 
in  assessing  the  plaintiff's  damages,  the  jury  are  not  limited  to 
mere  compensation  for  the  actual  damage  sustained  by  him;  they 
may  give  him  such  a  further  sum  by  way  of  exemplary  or  vindic- 
tive damages  as  the  jury  may  think  right  in  view  of  all  the 
circumstances  proved  on  the  trial,  as  a  protection  to  the  plaintiff 
and  as  a  salutary  example  to  others  to  deter  them  from  offend- 
ing in  like  manner.  And  in  determining  the  amount  of  exem- 
plary damages  which  would  be  pro]3er  to  give,  the  jury  may  take 
into  consideration  the  pecuniary  circumstances  of  the  defend- 
ant so  far  as  they  have  been  proved.  Winn  vs.  Pecldtam^  42 
Wis.  493. 

§  38.  Trespass  or  False  Tmpi'isonment. — If ,  under  the  evidence 
and  instructions  of  the  court  you  find  the  defendant  guilty,  and 
if  you  believe  from  the  evidence  that  the  defendant  was  guilty 
of  willful,  gross  and  wanton  op]iression  of  tlie  plaintiff,  then,  in 
assessing  the  plaintiff's  damages,  you  are  not  limited  to  the 
amount  of  his  actual  pecuniaiy  loss,  but  j'ou  may  also  take 
into  consideration  his  physical  pain  or  bodily  suffering  if  any 
is  shown,  also  his  mental  suffering,  such  as  anguish  of  mind, 
sense  of  shame,  humiliation,  or  loss  of  honor,  rejmtation  or 
loss  of  social  position,  if  you  find  that  these  things  have 
resulted  from  the  acts  complained  of,  and  allow  the  plaintiflE 
such  comjiensation  therefor  as  you  think  will  make  good  the 
injury  sustained.  Stewart  et  al.  vs.  Iladdox^  63  Ind.,  52; 
Scripts  vs.  liiley,  38  Mich.  10;  Fenelon  vs.  Butts,  53  Wis., 
344. 


MEASURE    OF    DAMAGES.  315 

In  an  action  for  false  imprisonment  the  jnvy  should  only 
allow  what  are  known  as  compensatory  damages — that  is,  such 
an  amount  as  will  make  good  to  the  plaintiff  the  damages 
actually  sustained  by  him,  ])rovided  tlie  jury  find  the  defend- 
ant guilty — and  in  this  case,  if  the  jury  tind  from  the  evidence 
Tinder  the  instructions  of  the  court  that  the  defendant  is  guilty, 
then,  in  fixing  the  plaintiff's  damages  you  may  include  the 
delay  in  his  business,  if  proved,  also  any  bodily  pain  or  mental 
anguish,  if  you  believe,  from  the  evidence,  that  such  pain  and 
mental  anguish  were  suffered  by  the  ])laintiff  in  consetpience 
of  the  acts  complained  of ,  and  also  any  injury  to  the  plaintiff's 
business,  profession,  reputation  or  social  position,  if  you  believe, 
from  the  evidence,  that  he  has  sustained  such  injury  by  reason 
of  the  wrongful  acts  complained  of,  and  give  the  plaintiff  such 
an  amount  as  damages  as  you  believe,  from  the  evidence,  will 
compensate  him  for  the  damages  thus  received. 


CHAPTER  XXXII. 

NEGLIGENCE  GENERALLY. 


Sec.     1.  Burden  of  proof. 

2.  Ordinary  and  reasonable  care  required  of  defendant. 

3.  Plaintiff  must  exercise  reasonable  care  and  prudence. 

4.  Master  liable  for  negligence  of  servant. 

5.  Servant  must  be  acting  within  the  scope  of  his  employment. 

6.  Wrongful  act  of  ser*  ant. 

7.  The  negligence  charged  must  be  the  proximate  cause. 

8.  Contractor's  negligence. 

9.  Contributory  and  gross  negligence. 

10.  Comparative  negligence. 

11.  Equal  negligence. 

12.  Injury  the  result  of  negligence  and  accident. 

13.  Wrongful  and  voluntary  exposure. 

14.  Ordinary  care  defined. 

15.  Gross  negligence  defined. 

16.  Collision  on  highway. 

17.  Danger  from  fire. 

18.  jSTegligence  of  counties  ana  towns. 

19.  Intoxication  as  contributory  negligence. 

§  1.  Burden  of  Proof.— The  burden  of  proving  negligence 
rests  on  tlie  party  alleging  it;  and  where  a  person  charges 
negligence  on  the  part  of  another  as  a  cause  of  action,  he  must 
jirove  the  negligence,  by  a  preponderance  of  evidence.  And 
in  tliis  case,  if  the  jury  iind  that  the  weight  of  the  evidence  is 
in  favor  of  the  defendant,  or  that  it  is  equally  balanced,  then 
the  ])laintiff  cannot  i-ecover,  and  tlie  jury  should  find  the  issues 
for  the  defendant.  Cooley  on  Torts,  673;  McQuilJcen  vs. 
Cent,  etc.,  Co.,  50  Cab,  7;  Q.  A.  c&  St.  L.  R.  B.  Co.  vs  Well- 
hoener,  72  111.,  60;  Iloyt  vs.  Hudson,  27  Wis.,  656;  St.  Paul 
vs.  Kuhy,  8  Minn.,  154;  Jeffersonville,  etc.,  vs.  Lyon,  55  Ind., 
477;  MurpJiy  vs.  Chiccujo.,  etc.,  Jid.  Co.,  45  la.,  661;  Strand 
vs.  C.  &  W.  M.  By.  Co.,  34  N.  W.  Rep.,  715. 

The  court  instructs  you,  that  if  you  believe,  from  the  evi- 
dence, that  the  defendant  was  guilty  of  negligence,  as  charged 
iu  the  declaration,  and  that  the  plaintiff  was  injured  thereby, 

(346) 


NEGLIGEJSrCE     GENERALLY.  347 

then,  as  regards  tlie  defendant's  liability,  it  makes  no  differ- 
ence whether  such  negligence  appears  or  is  proved  by  the  tes- 
timony on  the  jiart  of  the  plaintiff,  or  by  the  defendant's  own 
witnesses.     Keokuk^  etc.,  Co.  vs.  Tnce,  88  111.,  608. 

Yow  are  instructed,  that  in  determining  the  question  of  neg- 
ligence in  this  case,  you  should  take'  into  consideration  the 
situation  and  conduct  of  both  parties  at  the  time  of  the  alleged 
injury,  as  disclosed  by  the  evidence;  and  if  you  believe,  from 
the  evidence,  that  the  injury  complained  of  was  caused  by 
tlie  negligence  of  the  defendant's  servants,  as  charged  in 
the  declaration,  and  witliout  any  greater  want  of  care  and  skill 
on  the  [)art  of  plaintiff  than  was  reasonably  to  be  expected 
from  a  person  of  ordinary  care,  prudence  and  skill  in  the  situ- 
ation in  which  he  found  himself  placed,  then  the  plaintiff"  is 
entitled  to  recover.     Wharton  on  Neg.,  §  304. 

§  2.  Ordinary  and  Reasonable  Care  Reqnired  of  Defendant. — 
'The  jury  are  instructed,  that  it  is  the  duty  of  a  street  railroad 
company  to  exercise  all  reasonable  care  and  prudence  to  carry 
their  passengers  with  safety;  and  if  an  injury  to  a  passenger 
results  from  the  carelessness  of  its  servants  in  the  management 
of  its  cars,  from  a  defective  track  or  from  an  overloaded  car, 
or  from  all  combined,  the  company  will  be  liable;  provided, 
the  passenger's  OMm  negligence  does  not  contribute  to  the  in- 
jury.    Chicago,  etc.,  liy.  Co.  vs.  Young,  62  111.,  238. 

§  3.     Plaintiff  Mnst  Exercise  Reasonable  Care  and  Prudence. — 

The  jury  are  instructed,  that  the  plaintiff  was  bound  to  exer- 
cise ordinary  care  and  prudence  in  attempting  to  cross  the  street, 
and  though  the  jury  may  believe,  from  the  evidence,  that  the 
crossing  in  question  was  dangerous,  still,  if  they  further  believe, 
from  the  evidence,  that  the  accident  in  question  is  attributable 
to  the  want  of  ordinary  care  on  the  part  of  the  plaintiff,  then 
she  cannot  recover  in  this  suit,  unless  the  jury  further  believe, 
from  the  evidence,  that  the  defendant  was  guilty  of  such  gross 
negligence  as  implies  willful  or  wanton  injury.  Cooley  on 
Torts,  674;  Indianapolis,  etc.,  It.  R.  Co.  vs.  McClure,  26 
Ind.,  370;  Litchfield,  etc.,  Co.  vs.  Tai/lor,Sll\].,  590;  Brown 
vs.  Hannibal,  etc.,  Rd.  Co.,  50  Mo.,  461 ;  Cooper  vs.  Cent.  R. 
R.  Co.,  44  la.,  134. 


3.1:3  KEGLIGEKCE     GENERALLY. 

The  court  instructs  you,  that  wliile  a  person  walking  on  a 
public  liiglnvay  is  bound  to  use  all  reasonable  care  and  caution 
to  avoid  injury,  yet,  he  is  not  held  to  the  highest  possible  de- 
gree of  precaution  and  prudence  ;  and  to  authorize  a  recovery 
for  injuries  negligently  inflicted,  it  is  only  necessary  that  it 
apjiear,  from  the  evidence,  that  he  vras  using  reasonable  care 
and  caution. 

The  court  instructs  you,  that  when  a  person  is  injured  by 
the  negligence  of  another,  he  must,  after  the  injury  is  received, 
act  as  an  ordinarily  reasonable  and  prudent  man  would  under 
the  circumstances,  and  use  reasonable  diligence  to  know  wheth- 
er medical  aid  is  required,  and  to  use  all  reasonable  efforts 
to  have  himself  cured;  and  if  he  does  not  do  so,  he  cannot 
recover  of  the  defendant  for  any  suffering,  injury  or  damage 
which  results  from  his  failure  to  exercise  such  care  and  dili- 
gence.    Toledo,  W.  &   W.  Rd.  Co.  vs.  Eddy,  72  111.,  13S. 

§  4.  Master  Liable  for  Negligence  of  Servant. — The  master  is 
civilly  liable  for  the  tortious  acts  of  his  servants,  whether  of 
omission  or  commission,  or  whether  negligent,  fraudulent  or 
deceitful,  if  done  in  the  course  of  his  employment,  even  though 
the  master  did  not  authorize  or  know  of  such  acts,  or  may 
have  forbidden  them.  But  the  act  rnust  be  done,  not  only 
while  the  servant  is  engaged  in  the  service  he  is  employed  to 
render,  but  it  must  pertain  to  the  particular  duties  of  that  em- 
ployment. Snyder  vs.  Hannibal  Rd.  Co.,  60  Mo.,  413;  Rob- 
inson vs.  Wehb,  11  Bush  (Ky.),  464;  Eckert  vs.  St.  Louis,  etc., 
2  i^fo.  App.,  36. 

The  court  instructs  you,  that  where  a  tort  or  wrong  is  com- , 
mitted  by  an  agent  or  employe,  in  the  course  of  his  employ- 
ment, and  while  pursuing  the  business  of  his  employer,  the 
employer  will  be  liable  for  the  damages  resulting  from  the 
wrongful  act,  although  it  is  done  without  the  employer's  knowl- 
edge or  consent,  unless  the  wrongful  act  is  a  willful  departure 
from  such  employment  or  business.  1  Add.  on  Torts,  31; 
Cooley  on  Torts,  533;  Goddard  vs.  Grand  Trunk  R.  R.  Co., 
57  Me.,  202;  Phila.,  etc.,  R.  R.  Co.  vs.  Derby,  14  How.,  U. 
S.,  468;  Bryant  vs.  Rich,  106  Mass.,  180;  Ind.  R.  R.  Co.  vs. 
Anthony,  43  Ind.,  183. 

The  court  instructs  you,  that  when  the  employer  gives  his 


NEGLIGENCE     GEKKKALLY.  349 

servant  s^eneral  directions  as  to  tlie  business  wliich  is  entrusted 
to  liini  to  perform,  then  the  employer  is  held  to  have  confided 
in  the  discretion  of  his  servant,  and  is  answerable  for  all  the 
acts  of  the  servant  in  the  performance  of  the  duty  required. 
If  you  believe,  from  the  evidence,  that  before  and  at  the 
time  of  the  injury  com])lained  of,  the  said  S.  W.  was  in  the 
em|)loy  of  the  defendants,  and  that  in  the  course  of  such  em- 
ploy inont  and  while  pursuing  the  business  of  his  employers, 
and  while  the  plaintiff  was  walking  in  one  of  the  public  streets 
in  the  city  of  0.,  the  said  S.  W.,  carelessly  and  negligently 
permitted  a  horse  that  lie  was  riding  to  run  against  the  plaint- 
iff, and  thereby  injure  the  plaintiff,  as  charged  in  the  declara- 
tion, then  you  should  find  the  issues  for  the  plaintiff;  pro- 
vided, you  further  find,  Ihat  the  ])laintiff  was,  at  the  time,  exer- 
cising all  reasonable  care  and  caution  to  avoid  such  injury. 

§   5.      Servant  Must  be  Acting  AVithin  Scope  of  Employment.— 

Although  the  jury  may  believe,  from  tlie  evidence,  that,  at  the 
time  in  question,  the  said  A.  B.  was  in  the  general  employment 
of  the  defendant  as,  etc.,  and  that  he  committed  the  wrongful 
act  complained  of  in  the  declaration,  still,  if  the  jury  further 
believe,  from  the  evidence,  that  when  the  said  A.  B.  [ran  over 
the  plaintiff )  he  was  not  acting  within  the  scope  his  employ- 
ment, or  in  furtherance  of  the  defendant's  business,  but  was 
carrying  into  effect  some  purpose  of  his  own  not  connected 
with  his  employment,  then  the  defendant  would  not  be  liable 
for  such  act. 

If  you  believe,  from  the  evidence,  that  the  injuries  com- 
plained of  were  caused  by  the  negligence  or  carelessness  of 
the  servants  of  the  defendant,  in  the  course  of  their  employ- 
ment as  such  servants,  as  charged  in  the  declaration,  and  with- 
out any  fault  on  the  part  of  the  plaintiff,  M-hich  contributed  to 
the  injury  complained  of,  then  the  defendant  is  liable  in  this 
action. 

If  you  believe,  from  the  evidence,  that  the  injuries  com- 
plained of  were  caused  by  the  want  of  reasonable  care  and 
watchfulness  of  the  servants  of  the  defendant,  in  the  course  of 
their  employment  as  such  servants,  as  charged  in  the  declara- 
tion, and  that  the  plaintiff  made  use  of  all  the  care,  exertion 
and  skill  to  avoid  tlie  injury,  which  could  reasonably  be  ex 


350  KEGLIGENCE     GENERALLY. 

pected  from  a  man  of  ordinary  prudence,  energy  and  skill, 
under  the  circumstances  shown  by  the  evidence,  then  the  de- 
fendant is  liable  in  this  action. 

The  rule  of  law  is,  that  a  master  is  responsible  for  the 
wrongful  act  of  his  servant,  even  if  it  be  willful,  reckless  or 
malicious  ;  provided,  the  act  is  done  by  the  servant  within  the 
scope  of  his  employment,  and  in  furtherance  of  his  master's 
business,  or  for  the  master's  benefit.     1  Add.  on  Torts,  31. 

§  6.  Wrongful  Act  of  Servant. — If  the  Jury  believe,  from 
the  evidence,  that  defendant's  engineer,  with  intent  to  frighten 
plaintiff's  horses,  unnecessarily  and  wantonly  let  oii  steam  or 
blew  a  whistle,  and  thereby  frightened  plaintiffs  horses,  so 
that  they  ran  off  and  injured  him  while  he  was  in  the  exercise 
of  all  reasonable  care  and  prudence  in  that  behalf,  then  the 
defendant  is  guilty,  and  the  jury  should  find  for  the  plaintiff. 
Toledo^  etc.j  lid.  Co.  vs.  Harmon^  47  111.,  298. 

§  7.  The  Negligence  Charged  Must  be  the  Proximate  Cause. — 
The  court  instructs  the  jury,  that  the  rule  of  law  is,  that  every 
person  must  be  held  liable  fur  all  of  those  conccquences  which 
flow  naturally  and  directly  from  this  act,  or  which  might  have 
been  foreseen  and  reasonably  expected  as  the  result  of  his 
conduct,  but  not  for  those  consequences  which  do  not  flow 
naturally  and  directly  from  his  acts,  or  which  he  could  not 
have  foreseen  or  reasonably  liave  anticipated  as  the  result  of 
his  conduct.  Cooley  on  Torts,  68;  Wharton  on  Xeg.,  §  T4- 
78;  2  Parsons  onCont,  456;  Rigby  vs.  Ileioitt,  5  Exch.,  240; 
1  Add.  on  Torts,  6;  Fent  vs.  T.  P.  <&  W.  Ed.  Co.,  59  111., 
349;  BrasJiberg  \&.  MihcauJiee,  etc.,  Ed.  Co.,  50  "Wis.,  231. 

If  you  believe,  from  the  evidence,  that  the  defendant  was 
guilty  of  the  negligence  or  carelessness  charged  in  the  declara- 
tion, and  that  the  injury  complained  of  was  the  natural  con- 
sequence of  such  negligence  or  carelessness,  and  such  as  might 
have  been  foreseen  and  reasonably  anticipated  as  the  result  of 
such  negligence  or  carelessness,  then  such  carelessness  or  neg- 
ligence should  be  regarded  as  the  ap[)roximate  cause  of  the 
injury. 

You  are  instructed,  that  although  you  may  believe,  from 
the  evidence,  that  the  injury  complained  of  was  occasioned  by 


NEGLIGENCE     GENERALLr.  551 

tlie  acts  of  the  defendant,  still,  if  yon  further  believe,  from 
the  evidence,  that  such  injury  was  not  the  natural  result  of  the 
acts  of  the  defendant,  and  could  not  have  been  foreseen  or  rea- 
sonably expected  to  result  from  the  conduct  of  the  defendant, 
then  the  defendant  would  not  be  liable. 

You  are  instructed,  that  an  act  is  not  to  be  deemed  the 
proximate  cause  of  an  injury,  unless  the  injury  was  such  a  con- 
sequence of  the  act  as,  under  the  surrounding  circumstances  of 
the  case,  might  and  ought  to  have  been  foreseen  or  anticiimted 
by  an  ordinarily  reasonable  and  prudent  man,  as  reasonably 
likely  to  flow  from  the  act.  Hoag  vs.  LalxC  Shorey  etc.,  lid. 
Co.,  85  Penn.  St.,  293. 

§  8.  Contractor's  Negligence. — The  conrt  instructs  the  jury, 
as  a  matter  of  law,  that  when  work  is  contracted  to  bj  done 
by  a  contractor,  the  owner  retaining  or  exercising  no  control 
over  the  manner  of  doing  the  work,  and  the  work  isnotof  itself 
dangerous,  but  only  becomes  so  by  the  negligence  of  the  con- 
tractor, then  the  employer  is  not  liable  for  injuries  resnlting 
from  the  negligence  of  the  contractor.  Mijer  vs.  Uohhs,  hi 
Ala.,  175;  Pierrepoint  vs.  Loveless,  72  jST.  Y.,  211. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 
defendant  was  the  owner  of  the  premises  adjoining  the  side- 
walk in  question,  and  that  the  work  on  the  building  and  walk 
was  being  done  for  hire,  and  that  a  dangerous  and  unsafe 
opening  had  been  left  in  the  walk  by  reason  whereof  the 
plaintiff  was  injured,  as  alleged,  while  exercising  reasonable 
care  himself,  still,  if  you  further  believe,  from  the  evidence, 
that  before  the  time  of  the  alleged  injury,  the  defendant  had 
entered  into  a  written  contract  with  A.  &.  B.  for  an  erection  of  a 
building  on  said  premises,  and  that  the  said  A.  &B.  were  then 
reputed  to  be  skillful,  reliable  and  competent  builders,  and  that, 
at  the  time  of  the  injury,  said  contractors  were  in  the  exclusive 
possession  of  said  premises  and  sidewalk,  pursuant  to  the  terms 
of  said  contract,  for  the  purpose  of  erecting  said  building  and 
doing  said  work,  and  were  not  subject  to  the  control  or 
direction  of  the  defendant  as  to  the  manner  of  doing  the 
work,  and  that  the  acts  charged  as  the  cause  of  the  injury 
were  the  acts  of  the  said  contractors  or  their  employes,  and 
not  of  the  defendant  nor  of  his  servants  or  agents,  then  the  de- 


O02  NEGLIGENCE     GENERALLY. 

fendant  would  not  be  liable  for  such  injury.  Ryan  et  al.  vs. 
Gurran  et  al.,  64  Ind.,  345. 

That  when  work  is  contracted  to  be  done  wliich  is  danger- 
ous of  itself,  unless  guarded,  and  the  employer  makes  no  pro- 
vision in  his  contract  for  its  being  guarded,  and  makes  no 
reasonable  effort  to  guard  it  himself,  then  he  is  negligent,  and, 
if  injury  results  tlierefrom,  he  cannot  escape  liability,  on  the 
ground  that  the  work  was  done  by  a  contractor.  Wood  vs. 
Ind.  S.  D.,  44  la.,  27;  Hale  vs.  Johnson,  80  111.,  185. 

The  court  instructs  the  jury,  that  it  is  a  rule  of  law  that 
when  certain  work,  and  the  manner  of  doing  it,  are  assented 
to  by  the  employer,  and  damage  to  a  third  party  must  neces- 
sarily or  naturally  result  from  the  work  and  the  manner  of 
doing  it,  then  the  employer  will  be  liable.  And  in  this  case, 
if  the  jury  believe,  from  the  evidence,  that  the  defendant 
employed  the  said  A.  B.  to  blast  the  rocks  in  question,  for  the 
purpose  of  getting  out  the  stone  from  the  quarry,  and  that  the 
said  A.  B.,  in  pursuance  of  such  contract,  did  blast  out  the 
stone  in  question,  and  that  plaintiff's  property  was  damaged  in 
consequence  of  such  blasting,  then  the  defendant  would  be 
liable  for  such  damage,  provided  you  further  believe,  from 
the  evidence,  that  the  said  A.  B.  was  not  guilty  of  any  special 
negligence  or  want  of  ordinary  care  in  doing  said  work,  which 
resulted  in  or  contributed  to  such  injury.  Tiffin  vs.  McCor- 
mack,  34  Ohio  St.,  638. 

§  9.  Contributory  and  Gross  Negligence. — Although  the  jury 
may  believe,  from  the  evidence,  that  the  defendant's  servants 
were  guilty  of  negligence,  which  contributed  to  the  injury 
{or  death)  in  question,  still,  if  the  jury  further  find,  from  the 
evidence,  that  the  plaintiff  {or  deceased)  was  also  guilty  of 
negligence,  which  directly  contributed  to  the  injury,  then  the 
plaintiff  cannot  recover  in  this  suit,  unless  the  jury  further 
find,  from  the  evidence,  that  the  negligence  of  the  dt  fond- 
ant's servants  was  malicious  and  willful  or  wantonly  reckless, 
showing  an  utter  disregard  for  the  rights  and  property  of  the 
plaintiff  {or  the  life  of  the  deceased),  and  that  the  negligence 
of  the  plaintiff  was  but  slight,  as  explained  in  these  instruc- 
tions. Cooley  on  Torts,  674;  Lafayette,  etc.,  lid.  Co.  vs. 
Adams,  26  Ind.,  76;  Mulherrm  vs.  Delaware,  etc.,  Rd.  Co., 


KEGLIGENCE     GENERALLY.  6i)6 

81  Penn.  St.,  oCj(j;  Chicago,  etc.,  lid.  Co.  vp.  Dona/i.ue,  75  IH., 
100;  Broiiyn  vs.  Hannibal,  etc.,  lid.  Co.,  50  Mo.,  461;  Cooper 
vs.  Cent.  Rd.  Co.,  44  la.,  134;  Bm^hamv?,.  iSt.  Louis,  etc.,  lid. 
Co.,  56  Mo.,  338;  Ilutchins  vs.  Priestly  E.  ^Y.,  etc.,  Co.,  28 
]Sr.  W.  Rep.,  85;    Winchester  vs.  Case,  5  111.  App.,  486. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 
defendant  was  guilty  of  negligence  upon  the  occasion  in  ques- 
tion, which  contributed  directly  to  the  injury  complained  of, 
yet,  if  they  further  believe,  from  the  evidence,  tliat  the  plaintiff 
was  also  guilty  of  negligence  which  contributed  directly  to  the 
injury,  then  the  plainliff  cannot  recover  in  this  suit,  unless  the 
jury  further  find,  from  the  evidence,  that  the  conduct  of  tlie 
defendant's  servants  was  malicious  and  willful  or  wantonly 
reckless. 

The  court  instructs  you,  that  if  you  believe,  from  the  evi- 
dence, that  the  {deceased)  might,  in  the  exercise  of  ordinary 
care  and  caution,  have  seen  the  danger  and  avoided  it,  and  that 
his  omission  to  do  so  directly  contributed  to  the  injury,  then  he 
was  guilty  of  such  negligence  as  will  prevent  a  recovery  in  this 
suit,  unless  you  further  find,  from  the  evidence,  that  the  injury 
was  caused  by  the  willful,  intentional  or  wantonly  reckless  acts 
of  the  defendant  or  its  servants. 

If  you  believe,  from  the  evidence,  that  the  defendant,  or  its 
servants,  were  guilty  of  negligence,  as  explained  in  these  in- 
structions, upon  the  occasion  referred  to,  and  that  the  plaintiff 
was  injured  thereby,  as  stated  in  the  declaration,  and  that  he 
has  sustained  damage  by  reason  thereof;  and  also  that  the  plaint- 
iff was  himself  guilty  of  slight  negligence,  which  contributed 
to  the  injury,  and  without  which  the  accident  would  not  have 
happened,  still  the  defendant  would  be  liable  in  this  case; 
]irovided,  you  further  believe,  from  the  evidence,  that  the 
Fcrvants  of  the  defendant  saw  the  danger,  to  which  the  plaint- 
iff was  exposed,  in  time  to  have  averted  it,  and  by  the  exercise 
of  ordinary  care  and  prudence  could  have  ]M-evented  the 
injury.  Wharton  on  ¥eg.,  §  301;  Cooley  on  Torts,  675; 
Harlan  vs.  St.  Louis,  etc..  Lid.  Co.,  65  Mo.,  22. 

Note. — In  Illinois,  Georgia  and  Tennessee,  a  party  guilty  of  contributory 
negligence,  may  recover  for  injuries  sustained  through  the  negligence  of 
another;  provided,  the  negligence  of  the  other  party  is  gross  and  the  con- 
tributory negligence  is  slight,  when  compared  with  each  other  The  in- 
structions in  this  section  are  drawn  with  reference  to  this  view  of  the  law. 
23 


NEGLIGENCE     GENERALLY. 


§  10.  Comparative  Negligence — Contributory  Negligence  Sligl:t. 
— The  court  iustructs  tlie  jnrj,  that  while  a  person  is  bound 
to  use  reasonable  care  to  avoid  injury,  yet  he  is  not  held  to 
the  hifrhest  degree  of  care  and  prudence,  of  which  the  linnmn 
mind  is  capable;  and  to  authorize  a  recovery  for  an  injury,  he 
need  not  be  wholly  free  from  negligence ;  provided,  his  neg- 
ligence is  but  slight,  and  the  other  party  be  guilty  of  gross 
negligence,  in  comparison  therewith,  as  defined  in  these  in- 
structions. Galena  (&  C.  U.  E.  E.  Co.  vs.  Jacobs,  20  111.,  478; 
(7.,  B.  &  Q.  E.  E.  Co.  vs.  Eazzard,  26  111.,  373;  C,  B.  d?  Q. 
E.  E.  Co.  vs.  Deweij,  Admx.,  26  111.,  255;  111.  C.  E.  E.  Co. 
vs.  Simmons,  38  111.,  242;  C.  &  A.  E.  E.  Co.  vs.  Gretzner, 
46  111.,  76;  C  (&  IST.  W.  E.  E.  Co.  vs.  Sweeny,  52  111.,  325;  C, 
B.  &  Q.  E.  E.  Co.  vs.  Damerell,  81  111.,  450;  C,  B.  &  Q.  E. 
E.  Co.  vs.  Lee,  68  111.,  580;  C,  B.  &  Q.  E.  E.  Co.  vs.  Johnson, 
Admr.,  103  111.,  512;  Chicago  vs.  Stearns,  105  111.,  554;  W.,  St. 
L.  <&  P.  Ey.  Co.  vs.  Wallace,  110  111.,  .114;  3  Am.  and  Eng. 
Ency.,  367. 

And  fh  this  case,  although  the  jury  may  believe,  from  the 
evidence,  that  the  plaintiff  was  guilty  of  slight  negligence,  yet 
if  the  jury  further  believe,  from  the  evidence,  he  was  exercis- 
ing ordinary  care,  and  that  the  ]ilaintiff's  negligence  was  but 
slight,  and  that  the  defendant's  servants  were  guilty  of  gross 
negligence  in  comparison  with  the  negligence  of  the  plaintiff 
as  explained  in  these  instructions,  and  that  the  injuries  com- 
plained of  were  caused  by  the  negligence  of  the  defendant's 
servants,  then  the  plaintiff  is  entitled  to  recover. 

The  court  further  instructs  the  jury,  that  if  they  believe, 
from  the  evidence,  that  the  plaintiff  was  exercising  ordinary 
care  and  prudence  at  the  time  in  question  and  was  guilty  of 
only  slight  negligence,  which  contributed  to  the  injury,  and 
that  the  defendant  {servants  of  the  defendant)  was  wanting 
in  the  care  and  prudence  which  a  very  careless  man  would 
ordinarily  exercise  under  the  same  circumstances,  then  the  de- 
fendant was  guilty  of  gross  negligence;  and  if  the  jury  further 
believe,  from  the  evidence,  that  such  gross  negligence  was  the 
cause  of  the  injury  in  question,  as  charged  in  the  declaration, 
and  tiiat  the  negligence  of  the  plaintiff  was  but  slight  when 
compared  with  the  negligence  of  the  defendant,  then  they 
should  find  tlie  issues  for  the  plaintiff.  Lycoming  Lis.  Co. 
vs.  Barringer,  73  111.,  230. 


NEGLIGENCE    GENERALLY.  355 

The  court  instructs  the  jury,  that  while  a  person,  walking 
on  a  public  highway,  is  bound  to  use  all  reasonable  care  and 
caution  to  avoid  injury,  yet  he  is  not  held  to  the  highest  pos- 
sible degree  of  ])recaution  and  prudence ;  and  to  authorize  a 
recovery  for  injuries  negligently  inflicted,  the  plaintiff  need 
not  be  wholly  free  from  negligence;  provided,  his  negligence 
is  slight  in  itself,  and  the  negligence  of  the  other  party  is 
gross  in  comparison  with  each  otlicr. 

And  in  this  case,  though  the  jury  may  believe,  from  the 
evidence,  that  the  plaintiff  was  guilty  of  slight  negligence,  yet, 
if  the  jury  further  believe,  from  ihe  evidence,  that  the  defend- 
ant was  guilty  of  gross  negligence,  and  that  the  injury  com- 
plained of  was  caused  thereby,  and  that  the  negligence  of  the 
plaintiff  was  but  slight  when  compared  wnth  the  negligence 
of  the  defendant,  then  the  plaintiff  is  entitled  to  recover. 

The  court  instructs  the  jury,  that  the  question  of  the  liabil- 
ity of  the  defendant  does  not  depend  wholly  upon  the  absence 
of  all  negligence  upon  the  part  of  the  plaintiff  {or  deceased), 
but  it  depends  upon  the  relative  degree  of  care,  (5r  want  of 
care,  manifested  by  both  parties,  as  shown  by  the  evidence. 
And  in  this  case,  although  the  jury  may  believe,  from  the  evi- 
dence, that  the  plaintiff  {or  deceased)  was  not  wholly  wnthout 
fault,  yet,  if  they  further  believe,  from  the  evidence,  that  lie 
was  exercising  ordinary  care  and  prudence,  and  that  the  de- 
fendant was  guilty  of  gross  negligence,  upon  the  occasion 
referred  to,  and  that  the  injury  complained  of  was  occasioned 
by  such  gross  negligence,  and  if  you  further  believe,  from  the 
evidence  that  the  negligence  of  the  plaintiff'  was  but  slight  in 
comparison  to  the  negligence  of  the  defendant,  then  the  jury 
may  find  the  defendant  guilty. 

The  jury  are  instructed,  that  if  they  believe,  from  the  evi- 
dence, that  upon  the  occasion  referred  to  by  the  witness,  a 
bell  was  not  rung  nor  a  whistle  sounded,  at  a  distance  6f  (80 
rods)  from  the  crossing,  and  kept  ringing  or  whistling  until 
tlie  crossing  was  reached,  and  that  the  plaintiff  was  lulled  into 
security  by  reason  of  such  neglect  on  the  part  of  the  defend- 
ant, and  in  attempting  to  cross  the  railroad  track,  was  struck 
and  injured,  as  charged  in  the  declaration,  then  the  plaintiff 
will  be  entitled  to  recover,  in  this  suit,  if  he  was  exercising 
such  care  at  the  time  as  a  reasonably  prudent  man  will  adopt 


356  KEGLIGENCE    GENERALLY. 

for  tlie  security  of  liis  person  or  property  under  similar  cir- 
cumstances, even  though  he  was  guilty  of  slight  negligence; 
if  the  jury  believe,  from  the  evidence,  that  his  negligence 
was  but  slight,  and  the  negligence  of  the  defendant  was  gross 
in  comparison  therewitli.  Chi.  <&  A.  Rd.  Co.  vs.  Elmore,  67 
111.,  176. 

It  was  the  duty  of  the  defendant  to  use  reasonable  diligence 
to  keep  the  sidewalk  in  question  in  a  reasonably  safe  condition, 
and  if  the  jury  believe,  from  the  evidence,  that  tiie  defendant 
failed  to  perform  such  duty,  and  that  by  reason  of  its  negli- 
gence in  that  regard  the  said  sidewalk  was  permitted  to  reuiiiin 
out  of  repair  and  in  a  dangerous  condition,  by  reason  whereof 
the  plaintitf,  while  exercising  reasonable  care  on  her  part, 
received  the  injury  complained  of,  then  the  defendant  is  liable. 
And  the  court  further  instructs  the  jury,  that  if  they  find, 
from  the  evidence,  that  the  plaintiS  was  herself  guilty  of  som.e 
negligence,  but  that  the  defendant  was  guilty  of  gross  negli- 
gence contributing  to  such  injury,  and  that  the  plaintiff's  neg- 
ligence was  slight  as  compared  with  the  negligence  of  the 
defendant,  still  she  may  be  entitled  to  recover.  City  of  Chi- 
cago vs.  Stearns,  105  111,,  554. 

That  in  an  action  against  a  railroad  company,  to  recover  for 
injuries  occasioned  by  the  alleged  negligence  of  the  company 
in  running  its  train,  although  the  servants  of  the  company 
may  have  been  guilty  of  negligence,  contributing  to  the  in- 
jury com])lained  of,  still,  if  the  plaintiff  could,  by  the  exercise 
of  ordinary  care  and  prudence,  have  avoided  the  injui-y,  he 
cannot  recover.     Chicago  c&  A.  Rd.  Co.  vs.  Jacobs,  63  111.,  178. 

The  court  instructs  the  jury,  that  to  entitle  the  plaintiff  to 
recover,  the  jury  must  believe,  from  the  evidence,  that  the 
injury  complained  of  was  occasioned  by  the  carelessness  or  neg- 
ligence of  the  defendant,  or  its  servants,  in  the  manner 
charged  in  the  declaration.  And  if  the  jury  believe,  from 
the  evidence,  that  the  plaintiff  was  guilty  of  negligence,  con- 
tributing to  the  injury,  then  to  entitle  plaintiff  to  recover,  the 
jury  must  further  believe,  from  the  evidence,  that  the  negli- 
gence of  the  defendant  was  gross,  and  that  of  the  plaintiff  was 
but  slight,  in  comparison  with  each  other;  and  if  the  jury 
believe,  from  the  evidence,  that  the  negligent  conduct  of  the 
plaintiff  contributed  as  much,  or  nearly  as  much,  to  produce 


NEGLIGENCE    GENERALLY.  S57 

the  injury  as  that  of  the  defendant,  or  that  he  was  not,  at  tlio 
time,  exercising  ordinary  care,  then  the  plaintiff  cannot  re- 
cover, and  the  jury  should  lind  for  the  defendant. 

The  court  instructs  the  jury,  that  even  if  they  should  he- 
lie  ve,  from  the  evidence,  that  the  deceased  was  guilty  of 
slight  negligence,  upon  the  occasion  refen-ed  to,  still,  if  they 
further  believe,  from  the  evidence,  that  he  was  in  the  exercise 
of  ordinary  care  and  prudence,  and  that  the  servants  and  agents 
of  the  company  were  guilty  of  gross  negligence,  and  that  the 
negligence  of  the  deceased  was  but  slight,  in  comparison  with 
the  negligence  of  the  servants  and  agents  of  the  company, 
and,  further,  that  the  ])ersons  for  whose  use  this  suit  is 
brought  have  sustained  damage  in  the  death  of  the  deceased, 
as  charged  in  the  declaration,  then  the  jury  should  find  the 
issues  for  the  plaintiff. 

The  jury  are  instructed,  that  the  law  is,  that  if  a  railroad 
company  is  guilty  of  gross  negligence,  resulting  in  the  death 
of  a  ])erson,  and  such  pierson  while  in  the  exercise  of  ordinary 
care  and  prudence  is  guilty  of  only  slight  negligence  in  com- 
parison to  the  negligence  of  the  railroad  company,  contribu- 
ting to  the  injury,  such  contributory  negligence  will  not  of 
itself  prevent  a  recovery  against  the  company.  P,^  P.  c&  J. 
Pel.  Co.  vs.  Champ,  75  111.,  577. 

The  court  instructs  the  jury,  that  even  though  they  may 
believe,  from  the  evidence,  that  the  deceased  was  guilty  of 
slight  neglii^ence,  yet,  if  they  further  find,  from  the  evidence, 
that  the  negligence  of  the  deceased  was  but  slight,  and  that 
the  negligence  of  the  defendant  was  gross  in  comparison  to 
each  other;  and  they  further  find,  from  the  evidence,  that  the 
death  of  the  deceased  was  caused  by  such  gross  negligence  on 
the  part  of  the  defendant,  then  the  negligence  of  the  deceased, 
if  he  was  in  the  exercise  of  ordinary  care  at  the  time,  will  not 
prevent  a  recovery  in  this  case,  if  the  jury  find,  from  the  evi 
dence,  that  all  the  other  material  averments  in  the  declaration 
are  proved.  111.  Cent.  Pd.  Co.  vs.  Goddard,  72  111.,  567;  3 
Am.  &  Eng.  Ency.,  367. 

§  11.  Equal  Negligence. — The  court  instructs  the  jury,  tliat 
though  they  may  believe,  from  the  evidence,  that  the  defend- 
ant was  guilty  of  negligence,  upon  the  occasion  in  question, 


358  NEGLIGENCE     GEXKKALLT. 

and  tliat  such  negligence  contributed  to  tlieinjurj  conij^lained 
of,  yet,  if  the  jury  further  believe,  from  the  evidence,  that  the 
plaintiff  was  also  guilty  of  an  equal,  or  nearly  equal,  degree  of 
negligence,  directly  contributing  to  the  injury,  and  without 
which  it  could  not  have  occurred,  4;hen  the  jury  should  find 
the  de  endant  not  guilty. 

In  this  case,  if  you  believe,  from  the  evidence,  that  both  the 
deceased  and  the  agents  and  servants  of  the  railroad  company 
were  guilty  of  gross  negligence,  contributing  to  the  injury  of 
which  the  deceased  died,  then  you  should  find  your  verdict  for 
the  defendant. 

§  12.  Injury  the  Result  of  Xegli;^ence  and  Accident. — The  court 
instructs  the  jury,  as  a  matter  of  law,  that  if  a  person  receives 
an  injury  as  the  combined  result  of  an  accident  and  of  negli- 
gence on  the  part  of  another,  and  the  accident  would  not  have 
occurred  but  for  such  negligence,  and  the  danger  could  not 
have  been  foreseen  or  avoided  by  the  exercise  of  reasonable  care 
and  prudence,  on  the  part  of  the  person  injured,  then  the  per- 
son guilty  of  the  negligence  will  be  liable  for  the  injury  re- 
ceived.    City  of  Aurora  vs.  Pulfer,  Q'd  111.,  270. 

The  court  instructs  you,  that  to  entitle  the  plaintiff  to 
recover  in  this  suit,  it  must  apjiear,  from  the  evidence,  that 
the  injur}'  complained  of  was  occasioned  by  the  want  of  atten- 
tion, carelessness  or  negligence  on  the  part  of  the  defendant 
or  its  servants,  as  charged  in  the  declaration,  and  was  not  sim- 
ply the  result  of  an  accident;  and  if  you  believe,  from  the 
evidence,  that  the  injury  resulted  from  an  accident  which 
could  not  have  been  foreseen  or  guarded  against,  by  the  exer- 
cise of  ordinary  and  reasonable  care  and  prudence,  on  the  part 
of  the  defendant,  then  the  ])laintift'  cannot  recover,  and  you 
should  find  for  the  defendant. 

§  13.  Wrongful  and  Voluntary  Exposure. — The  jury  are  in 
etructed,  that  if  a  man  wrongfully  gets  upon  a  freight  car  and 
voluntarily  puts  himself  in  a  dangerous  place  on  a  car,  while 
in  motion,  he  does  so  at  his  own  risk;  and  if  the  persons  in 
charge  of  the  car  see  him  and  do  not  notify  him  that  he  is  in 
danger,  this  is  not  such  negligence  as  will  render  the  company 
liable — the  persons  in  charge  of  the  car  are  under  no  legal 
obligation  to  notify  him  that  such  place  is  a  dangerous  one. 


NEGLIGENCE    GENERALLY.  359 

§  14.  Ordinary  Care  Defined. — The  court  instructs  tlie  jury, 
tluit  ordinary  care  depends  upon  the  circumstances  of  each 
particular  case,  and  is  such  care  as  a  person  of  ordinary  pru- 
dence and  skill  would  usually  exercise  under  the  same  or  simi- 
lar circumstances.  N'orfolh,  etc.,  Rd.  Co.  vs.  Ormshy,  27 
Gratt.,  Crojiin  vs.  21ie  Village,  etc.,  50  Wis.,  375. 

Slight  Negligence  Defined. — That  slij^ht  negligence  means  the 
absence  of  that  degree  of  care  and  vigilance  which  persons  of 
extraordinary  prudence  and  foresight  are  accustomed  to  use 
under  similar  circumstances.  Hammond  vs.  Town  of,  etc.,  40 
Wis.,  35. 

§  15.  Gross  Negligence  Defined. — By  the  term  gross  negli- 
gence, as  used  in  these  instructions,  is  meant  a  wrongful  act  or 
omission,  willfully  and  maliciously  done  or  omitted,  or  wan- 
tonly reckless  conduct,  showing  an  utter  disregard  of  the 
rights  of  others. 

The  term  gross  negligence,  as  used  in  this  class  of  cases, 
means  the  want  of  that  degree  of  prudence  and  care  which 
even  extremely  careless  and  imprudent  men  are  accustomed  to 
exercise,  under  the  same  or  similar  circumstances. 

Gross  negligence  is  defined  to  be  the  want  of  slight  care,  or 
an  utter  disregard  of  consequences  in  the  performance  of  a 
given  act.     C,  B.  c&  Q.  R.  R.  Co.  v.  Johnson,  103  111.,  523. 

§  16.     Collision  on  the  Highway. — The  Jury    are   instructed 
as  a  matter  of  law,  that  the  rights  of  footmen  and   horsemen, 
on  a  public   highway,  a- e   equal,  and    the  law   requires  both 
parties  to  use  all  reasonably  prudent  precautions  to  avoid  acci- 
dent and  damage  to  themselves  or  others. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  of 
the  alleged  injury  the  plaintiff  was  walking  along  one  of  the 
public  streets  of  the  city  of  C,  with  his  back  towards  the  said 
S.  W.  and  at  the  same  time  the  said  S.  W.  was  riding  a  horse 
on  the  same  street,  in  the  direction  of  the  ])laintiff,  and  that 
the  said  S.  W.  saw,  or  by  the  exercise  of  reasonable  care  and 
caution  could  have  seen,  the  ])laintiff  in  season  to  have  stopped 
his  horse,  altered  its  course,  or  in  some  way  avoided  the  accident; 
and  if  the  jury  further  believe,  from  the  evidence,  that  the  said 


3G0  NEGLIGENCE    GENERALLx. 

S.  W.  did  not  do  so,  but  carelessly  and  ne<^Hgently  permitted 
tlie  horse  which  he  was  riding  to  run  against  the  plaintiff  and 
Icnock  him  down,  and  thereby  injured  him,  as  chai-ged  in  the 
declaration,  this  would  be  negligence  on  the  part  of  S.  W.;  and 
if  the  jury  further  believe,  from  the  evidence,  that  the  said 
S.  W.  was,  at  the  time,  in  the  employ  of  the  said  defendants, 
and  pursuing  their  business,  then  the  defendants  are  liable  for 
such  negligence;  provided,  the  jury  further  believe,  from  the 
evidence,  that  the  plaintiff  was  himself  without  fault  or  neg- 
ligence which  contributed  to  the  injury.  And  was  at  the  time 
exercising  ordinary  care  to  avoid  personal  injury. 

Even  though  the  jury  should  believe,  from  the  evidence, 
that  the  plaintiff  was  at  first  guilty  of  some  degree  of  negli- 
gence, still,  if  the  jury  fm'ther  believe  from  the  evidence  that 
the  driver  of  the  wagon  actually  saw  the  plaintiff  and  had  a 
full  view  of  the  situation  before  the  accident  and  by  the  exer- 
cise of  reasonable  and  ordinary  care  could  have  avoided  or 
prevented  the  injury,  and  he  then  failed  to  exercise  such  care 
and,  in  consequence  of  the  want  of  such  reasonable  and  ordi- 
nary care  on  his  part,  the  plaintiff  received  the  injury  com- 
plained of,  then  the  defendant  is  guilty. 

A  person  about  to  cross  a  street  in  a  city,  in  which  there  is 
an  ordinance  against  fast  driving,  has  a  right  to  presume,  if  he 
has  no  knowledge  or  notice  to  the  contrary,  that  others  will 
observe  and  conform  to  the  ordinance  in  driving  on  said  street, 
and  it  would  not  be  negligence  on  his  part  in  such  a  case  to 
act  on  the  presumjition  that,  in  attempting  to  cross,  he  will  be 
exposed  to  a  danger  which  could  only  arise  through  a  disre- 
gard of  the  ordinance  by  othei's.  Baker  vs.  Pendergast,  32 
Ohio  St.,  494. 

If  a  person  about  to  cross  a  street  knows,  or  by  the  exercise 
of  reasonable  care  and  caution  could,  that  others  are  driving 
along  the  street  at  the  place  of  crossing  at  a  rate  of  speed  for- 
bidden by  the  ordinance,  or  if  he  has  the  full  means  of  know- 
ing the  rate  at  which  tliey  are  driving,  then  the  existence  of 
sucli  an  ordinance  would  not  authorize  a  presumption  which 
Avas  known  to  be  otherwise,  or  which,  by  the  exercise  of  ordi- 
nary care  and  prudence,  he  might  have  known  to  be  other- 
wise. 

In   the  use  of  a  public  highway  a  person  has  a  right  to 


NEGLIGENCE    GENERALLY.  361 

expect  from  others  using  the  same  higliway  ordinary  pru- 
dence and  care  to  avoid  accidents,  and  to  rely  upon  that 
presumption  indetei-mininii^  his  own  manner  of  usin<i;  the  road- 

Although  the  jury  may  believe,  from  the  evidence,  tluit  the 
injury  complained  of  resulted  from  the  negligence  of  the 
defendant,  still  this  will  not  entitle  the  plaintiff  to  recover,  if 
the  jur}'  believe,  from  the  evidence,  that,  by  using  reasonable 
and  ordinary  care  and  judgment,  the  driver  of  plaintiS's  team 
might  have  avoided  the  injury. 

In  deciding  whether  the  plaintiff's  daughter  was  guilty  of 
negligence  upon  the  occasion  in  question,  or  was  exercising 
ordinary  care  in  driving  the  team  as  she  did,  the  jury  should 
consider  lier  age  and  the  fact  that  she  was  a  woman,  and  she 
would  not  be  guilty  of  negligence  if  she  used  that  degree  of 
care  and  judgment  that  a  person  of  her  age  and  sex  would 
ordinarily  use. 

If  the  jury  believe,  from  the  evidence,  that  defendant's 
teamster  in  charge  of  his  horses  and  wagon,  was  a  person  of 
ordinary  and  reasonable  skill  in  the  business  in  which  he  was 
engaged,  and  that  he  exercised  the  ordinai-y  judgment  and 
skill  of  a  prudent  and  competent  teamster  in  driving  defend- 
ant's team,  at  the  time  of  the  alleged  injui-y,  but  that  by  an 
error  of  judgment,  he  contributed  to  the  injury  of  plaintiff's 
horse,  without  any  want  of  ordinary  care,  skill  or  caution  on 
his  part,  then  the  verdict  must  be  for  tlie  defendant. 

§  17.  Danger  from  Fire. — -The  jui-y  are  instructed,  that 
the  question  of  negligence  or  diligence  dejiends  ujion  and 
partakes  of  the  surrounding  circumstances  })eculiar  to  each 
case,  and  in  tliis  case,  if  the  jury  believe,  from  the  evidence, 
that  defendant's  mill,  as  it  was  accustomed  to  be  used,  endan- 
gered the  buildings  of  the  plaintiff  by  reason  of  throwing  out 
fire  and  sparks  from  the  chimney,  then  it  became  the  duty  of 
the  defendant  to  avail  himself  of  some  such  well  known  a]>pa- 
ratus,  or  other  means,  to  prevent  the  escape  of  sparks  and  fire 
from  the  cliimney  as  experience  had  shown  to  be  reasonably 
adequate  for  that  purpose;  whether  such  apparatus  or  means 
was  generally  used  on  such  chimneys  or  not,  provided  the  jury 
believe,  from  the  evidence,  that  apparatus  had  been  dis- 
covered and  was  generally  known  to  persons  engaged  in  the 


362  NEGLIGENCE     GENERALLY. 

same  or  similar  business  wliieli  would  have  lessened  the  dan- 
gler, and  were  in  tlieir  nature  and  operation  reasonably  sus- 
cejitible  of  baing  applied  to  chimneys  of  the  kind  used  by  the 
defendant.     Hoyt  vs.  Jeffers^  3i)  Mich.,  181. 

If  the  jury  believe,  from  the  evidence,  that  the  erection 
and  operation  of  defendant's  mill  endangered  the  plaintiff's 
property  by  fire,  then  it  was  the  duty  of  the  defendant  in  the 
erection  and  ©iteration  of  said  mill  to  use  such  precautions, 
and  to  take  such  measures  to  lessen  the  danger  and  prevent 
the  injury  as  an  ordinarily  prudent  and  careful  man  conver- 
sant with  the  business  and  the  danger  and  all  the  surround- 
ings affecting  the  risks  would  ordinarily  have  used  to  protect 
his  own  property  from  danger.  And  if  the  jury  believe,  from 
the  evidence,  that  the  defendant  fell  short  of  this  degree  of 
precaution,  and  operated  his  mill  with  less  care  and  caution 
than  an  ordinarily  prudent  and  careful  man  would  have  used 
under  the  same  circumstances,  and  that  a  loss  thereby  accrued 
to  the  plaintiff,  then  the  defendant  is  liable,  provided  the  jury 
believe,  from  the  evidence,  that  the  plaintiff's  own  negligence 
did  not  in  any  manner  contribute  directly  to  the  injury. 

If  the  jury  believe,  from  the  evidence,  that  the  operation  of 
defendant's  mill  endangered  the  plaintiff's  property  by  the  es- 
cape of  sparks  from  the  chimnej^  then,  in  adopting  means  to 
check  the  flow  of  spai'ks,  the  defendant  was  bound  not  only  to 
adopt  measures  calculated  to  arrest  the  danger,  if  such  means 
were  generally  known  and  used,  but  he  was  bound  to  use  the 
means  which,  in  the  progress  of  science  and  improvement,  have 
been  shown  by  experience  to  be  the  best  for  that  purpose,  if 
the  evidence  shows  that  there  are  any  such — unless  it  be  some 
recent  invention  not  generally  known  or  unreasonably  expen- 
sive. Whether  the  defendant's  mill  did  endanger  plaintiff's 
property  and  whether  the  defendant  had  adopted  such  means 
as  experience  had  shown  were  best  calculated  to  lessen  the  dan- 
ger, etc.,  etc.,  are  questions  of  fact  to  be  determined  by  the 
jury  from  the  evidence  in  the  case. 

§  18.  Ne/?ligence  of  County  and  Towns  {By  Statiote). — By  the 
statutes  of  this  state,  it  is  made  the  imperative  duty  of  the  board 
of  county  commissiuncis,  to  keep  or  to  cause  all  the  bridges  in 
the  county  to   be  kejit   in  good  and   safe  repair — and  if    the 


NEGLIGENCE     GENERALLY.  303 

board  of  county  commissioners  negligently  suffer  a  bridge 
in  their  county  to  remain  out  of  repair  after  notice,  etc.,  and 
a  person  in  the  ordinary  use  of  tlie  bridge  is  thereby  injured 
in  person  or  property,  without  any  fault  on  his  part,  he  will 
have  an  action  for  damages  against  the  county.  House  vs. 
County  Corns.,  60  Ind.,  5S0. 

§  19.  Intoxication  as  Contributory  Negligence. — The  court  in- 
structs the  jury,  as  a  matter  of  law,  that  a  man  cannot  vohiu. 
tarily  place  himself  in  a  condition,  whereby  he  loses  such 
control  of  his  brain  or  muscles  as  a  man  of  ordinary  prudence 
and  caution  in  the  full  possession  of  his  faculties  would  exer- 
cise, and  by  such  loss  of  control  contribute  to  an  injury  to 
himself,  and  then  hold  one  ignorant  of  his  condition  liable  in 
■damages.  And  if  you  believe,  from  the  evidence,  that  at  the 
time  of  the  alleged  injury,  the  plaintiff  was  so  intoxicated,  that 
he  had  lost  such  control  of  his  brain  or  muscles  as  an  ordinarily 
prudent  and  cautious  man  in  the  full  possession  of  his  faculties 
would  exeicise  under  similar  circumstances,  and  that  the  defend- 
ants were  ignorant  of  such  condition,  and  if  you  further 
find,  from  the  evidence,  that  sucli  intoxication  contributed  to 
the  alleged  injury,  then  the  plaintiff  cannot  recover.  Strcmd 
vs.  C  (&  W.  M.  By.  Co.,  34  N.  W.  Kep.,  715. 


CHAPTER   XXXIII. 

NEGLIGENCE— MUNICIPAL  C0RP0EATI0:N'S. 


Sec.     1.  Liable  for  unsafe  condition  of  streets,  when. 

2.  Duty  to  k(!ep  streets  in  a  reasonably  safe  condition. 

3.  Duty  to  provide  guards  and  notice. 

4.  Street  includes  sidewalk. 

5.  Accident  and  negligence. 

6.  Reasonable  care  and  caution,  what. 

7.  The  care  must  be  proportionate  to  the  known  danger. 

8.  No  liability  without  negligence. 

9.  Sliglit  negligence  will  not  prevent  recovery. 

10.  Streets  and  walks  to  be  kept  reasonably  safe. 

11.  Negligence  of  driver. 

12.  Not  obliged  to  open  streets,  etc. 

13.  Degree  of  care  required. 

14.  Do  not  insure  safety — Not  liable  for  every  accident. 

15.  Liable  for  the  negligence  of  others,  when. 

16.  Not  liable  for  negligence  of  others,  when. 

17.  Must  have  notice  of  defects,  actual  or  constructive. 

18.  Defective  sidewalk,  notice  presumed,  when. 

19.  Injury  to  adjoining  property,  changing  grade. 

20.  Liable  for  want  of  reasonable  care  only. 

21.  Defective  plan  of  public  improvement. 

22.  Changing  watercourse. 

23.  Sewer  out  of  repair. 

24.  Measure  of  damages. 

§  1.  Liable  for  Unsafe  Condition  of  Streets,  When. — Tlie  court 
instructs  tlie  jury,  that  the  defendant  corporation  is  bound  by 
hiw  to  use  all  reasonable  care,  caution  and  supervision  to  keep 
its  streets,  sidewalks  and  bride^es  in  a  safe  condition  for  travel, 
in  the  ordinary  modes  of  traveling,  by  night  as  well  as  by  day, 
and  if  it  fails  to  do  so,  it  is  liable  for  injuries  sustained,  incon- 
sequence of  such  failure;  provided,  the  party  injured  is  himself 
exercising  reasonable  care  and  caution;  and  the  fact  that  the 
plaintiff  may,  in  some  way,  have  contributed  to  the  injury  sus- 
tained by  him,  will  not  prevent  his  recovery  if,  by  oixlinary 
care,  he  could  not  have  avoided  the  consequences  to  himself 
or  the  defendant's  negligence.     Cooley  on  Torts,  625;  Mayor, 

(364) 


NEGLIGENCE.  305 

etc.,  vs.  Didd,  58  Ga.,  238;  CeniervUle  vs.  Woods,  57  Ind., 
192;  Rowell  vs.  Williams,  29  la.,  210;  St.  Paul  vs.  Kuhj, 
8  Minn.,  154. 

Tf  you  believe,  from  the  evidence,  that  tlic  corporate  author- 
ities of  the  city  of  S.  did  not  exercise  all  reasonable  care  and 
supervision  over  that  portion  of  the  sidewalk  wliere  the  injury 
in  question  is  alleged  to  have  occurred,  to  keep  it  in  good  and 
safe  condition,  and  by  that  means  allowed  it  to  become  defect- 
ive and  unsafe;  and  if  you  further  believe,  from  the  evidence, 
that  the  ])laintiff,  in  attempting  to  walk  along  that  portion  of 
the  sidewalk,  by  reason  of  such  defect  was  injured,  and  has 
sustained  damage  thereby,  as  charged  in  the  declaration,  and 
that  he  was  at  the  time  exercising  reasonable  care  and  caution 
to  avoid  such  injury,  then  the  defendant  is  liable,  and  you 
sliould  find  for  the  plaintiff. 

§  2.  Law  Imposes  the  Duty  to  Ksep  Streets  in  Reasonably  Safe 
Condition. — The  law  is,  that  where  the  city  charter  gives  the 
city  authorities  power  to  provide  for  keeping  the  streets  m 
repair,  and  to  prohibit  obstructions  therein,  then  it  is  the  duty 
of  the  city  authorities  to  keep  the  streets  and  sidewalks  in  a 
safe  condition  for  travel,  so  far  as  this  can  be  done  in  the  exer- 
cise of  reasonable  care  and  prudence  in  that  respect.  Cooley 
on  Torts,  625;  The  People  vs.  The  Mayor,  etc.,  03  III,  207; 
Prideanx  vs.  Mineral  Point,  43  "Wis.,  513;  Mayor,  etc.,  vs. 
Qooley,  55  Ga.,  17. 

The  jury  are  instructed,  as  a  matter  of  law,  that  any  person 
traveling  upon  a  sidewalk  of  a  city,  which  is  in  constant  use 
by  the  public,  has  a  right,  when  using  the  same  with  due  dili- 
gence and  care,  to  presume,  and  to  act  upon  the  prcsumjition, 
that  it  is  reasonablj'  safe  for  ordinary  travel  throughout  its 
entire  width,  and  free  from  all  dangerous  holes,  obstructions 
or  other  defects.     Indianapolis  vs.  Gaston,  58  Ind.,  224. 

If  the  jury  believe,  from  the  evidence,  that  the  ])laintiflr, 
while  passing  along  one  of  the  sidewalks  in  said  city,  was 
injured,  as  alleged  in  his  declaration,  and  that  the  injury  would 
not  have  happened  to  him  if  the  said  sidewalk  had  been  in  a 
reasonably  good  repair  and  safe  condition,  then  the  defendant 
is  liable  ior  such  injury;  provided,  the  jury  believe,  from  the 
evidence,  that  the  plaintiff  was  exercising  reasonable  care  and 


366  MUNICIPAL  COKrOKATIONS. 

caution  to  avoid  injury  while  passing  over  said  walk;  and  that 
said  city  did  not  use  reasonable  care  to  keep  said  sidewalk  in 
safe  condition. 

§  3,  Duty  to  Provide  Guards  and  Notice. — The  court  instructs 
the  jury,  that  while  a  city  has  the  right  to  construct  sewers, 
or  other  iuiprovements  in  its  streets,  yet,  when  it  causes  such 
work  to  bo  done,  it  is  bound  to  take  notice  of  the  character  of 
the  work  and  the  condition  in  which  the  streets  are  left, 
whether  safe  or  dangerous. 

If,  in  making  improvements,  'it  becomes  necessary  to  leave 
dangerous  lioles  or  openings  in  the  street,  or  to  leave  piles  of 
dirt,  or  other  obstructions,  in  the  street,  in  such  a  way  as  to 
render  it  dangerous  for  wagons  or  carriages  to  pass,  then  it  is 
the  duty  of  the  city  to  put  up  guards  or  notices  of  some  kind, 
to  warn  travelers  of  the  dangerous  condition  of  the  stret; 
and  if  they  do  not  do  so,  and  persons  are  therebj*  injured, 
while  in  the  exercise  of  reasonable  care  and  prudence  them- 
selves, the  city  will  be  liable  for  the  injuries  thus  sustained. 

The  court  instructs  the  jury,  that  all  incorporated  towns, 
villages  and  cities,  whcthsr  incorporated  by  special  charter  or 
under  general  laws,  have  the  power,  and  it  is  their  duty,  to 
keep  in  repair  the  roads  and  bridges  within  their  corporate 
limits,  and  if  injury  results  to  any  individual  by  reason  of  a 
neglect  of  such  duty,  while  he  himself  is  exercising  reasonable  ' 
care  and  prudence  to  avoid  such  injury,  the  cor]wration  will 
be  liable  in  damages.  The  President^  etc.y  vs.  Meredith^  54 
111.,  84. 

§  4.  Street  Tnoludes  Sidewalks. — The  jury  are  instructed, 
that  the  streets  of  a  city  extend  to  and  include  tliat  portion 
thereof  occupied  and  used  for  sidewalks.  In  the  grant  by  the 
legislature  of  control  over  the  streets  of  the  city,  to  the  city 
authorities,  control  over  the  sidewalks  passes  to  them  as  a  part 
of  the  street,  and  this  imposes  upon  the  city  authorities  the 
duty  of  keeping  the  sidewalks  in  repair,  as  a  part  of  the 
street.     City  of  B.  vs.  Bay,  42  111.,  503. 

§  5.  Accident  and  Negligence. — The  court  instructs  the  jury, 
that  if  they  believe,  from  the  evidence,  that  the  plaintiff  was 


NEGLIGENCE.  367 

injured  and  sustained  damage,  as  charged  in  tlie  declaration, 
and  that  sncli  injury  was  the  combined  result  of  an  accident, 
and  of  a  defect  in  the  walk,  and  that  the  damage  would  not 
have  been  sustained  but  for  the  defect,  although  tlie  primary 
cause  of  tlie  injury  was  a  pure  accident,  still,  if  the  jury  fur- 
ther believe,  from  the  evidence,  that  the  plaintiff  was  guilty 
of  no  fault  or  negligence,  and  the  accident  one  which  common 
and  ordinary  prudence  and  sagacity,  on  the  part  of  the  plaint- 
iff, could  not  have  foreseen  and  provided  against,  then  the 
city  is  liable;  provided,  the  jury  believe,  from  the  evidence, 
that  the  city  authorities  were  guilty  of  negligence  in  not 
remedying  such  defect.      Wilson  vs.  Atlanta^  60  Ga,,  473. 

§  6.  Reasonable  Care  and  Caution,  AVliat. — The  jury  are  fur- 
ther instructed,  that  reasonable  care  and  caution  required  of 
the  plaintiff,  as  mentioned  in  these  instructions,  means  that 
degree  of  care  and  caution  which  might  reasonably  be  ex- 
pected from  an  ordinarily  prudent  person,  under  tlie  circum- 
stances surrounding  the  plaintiff  at  the  time  of  the  alleged 
injury. 

§  7.     Care  Must  be  Proportionate  to  the  Known  Danger. — If  the 

jury  believe,  from  the  evidence,  that  the  place  where  the  acci- 
dent in  question  occurred,  was  necessarily  more  dangerous 
than  the  ordinary  streets  and  sidewalks,  and  that,  by  the  exer- 
cise of  ordinary  care  and  prudence,  this  condition  of  things 
could  have  been  known  to  the  plaintiff,  or  was  known  to  him, 
then  the  plaintiff  was  required  to  use  more  than  ordinary  care 
and  caution  to  avoid  the  accident,  and  if  he  failed  to  do  so, 
and  thereby  contributed  to  the  injury,  he  cannot  recover  in 
this  suit. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 
city  authorities  had  negh'gentlj^  suffered  snow  and  ice  to  ac- 
cumulate on  the  walk  in  question,  until  it  was  in  a  dangerous 
condition  for  walking,  still,  if  you  further  believe,  from  the 
evidence,  that  this  condition  of  the  walk  was  known  to  the 
plaintiff  before  he  attempted  to  walk  over  it,  and  that  he 
might  easily  have  avoided  passing  over  such  dangerous  place, 
then  he  was  not  using  that  reasonable  care  and  prudence  to 
avoid  injury  which  the  law  requires  and  he  cannot  recover  in 
this  case.     Schaefler  vs.  Sandusky,  33  Ohio  St.,  246. 


368  MUNICIPAL  COEPOEATIONS. 

The  jury  are  instructed  that  a  person  has  no  right  to  know- 
ingly expose  himself  to  danger,  and  then  recover  dajnages  he 
might  have  avoided  by  the  use  of  reasonable  precaution ;  and 
if  the  jury  believe,  from  the  evidence,  that  the  plaintiff,  before 
and  at  the  time  of  the  alleged  injury,  knew  of  the  defect  in 
the  sidewalk,  and  in  going  to  his  house  on  the  night  of  the  al- 
leged injury  could  have  taken  another  and  safe  route,  of  equal? 
or  nearly  equal,  distance,  then  the  jury  have  a  right  to  consider 
his  failure  to  take  such  other  route,  if  such  there  was,  into 
consideration  in  determining  whether  the  plaintiff  was,  at  the 
time  of  the  injury,  exercising  due  care  and  caution  for  his  own 
safety.      Toion  of  iLlkhart  vs.  Iiltie)\  QQ  Ind.,  136. 

§  8.  No  Liability  without  Negligence. — That  munici;  al  cor- 
porations, such  as  the  defendant,  are  only  liable  for  such 
defects  in  their  sidewalks  as  are  in  themselves  dangerous  or 
such  that  a  person  exercising  reasonable  care  and  caution  can- 
not avoid  danger  in  passing  over  it,  if  the  jury  believe,  from 
the  evidence,  that  the  defect  in  the  sidewalk  in  question  was 
not  in  itself  dangerous  to  the  safety  of  a  person  passing  over 
it  with  reasonable  care  and  caution,  and  that  the  alleged 
injury  was  the  result  either  of  a  mere  accident  without  negli- 
gence on  the  part  of  defendant,  or  that  it  resulted  from  a 
want  of  reasonable  care  and  caution  on  the  part  of  the  plaint- 
iff, then  the  jury  should  find  the  defendant  not  guilty. 

The  jury  are  instructed  that,  in  this  case,  there  can  be  no 
liability  on  the  part  of  the  defendant,  unless  there  was  neglect 
of  duty  in  respect  to  the  repair  of  the  sidewalk  on  the  ]iart  of 
the  officers  of  the  city;  and  there  can  be  no  such  neglect  of 
duty,  unless  the  jury  find  from  the  evidence  that  the  officers 
of  the  city  knew  of  the  defect  in  the  sidewalk  complained  of, 
or  with  reasonable  diligence  could  have  known  of  it,  long 
enough  before  the  accident  occurred,  to  have  had  it  repaired. 
Sheil  et  al.  vs.  The  City  of  Aj>phton,  49  Wis.,  125. 

It  was  the  duty  of  the  defendant  city  to  keep  and  maintain 
its  streets  and  sidewalks  in  good  order  and  repair,  for  the  use 
and  convenience  of  the  traveling  public  walking  and  passing 
thereon,  so  far  as  this  could  be  done  by  the  exercise  of  all  rea- 
sonable care  and  oversight  on  the  part  of  its  officers.  And  if 
the  jury  believe,  from  the  evidence,  that  the  sidewalk  at  the 


NEGLIGENCE.  369 

time  and  place  in  question  was  out  of  repair  and  in  a  danger- 
ous condition  and  that  tlie  city  authorities  knew  of  the  defect, 
or  by  the  exercise  of  reasonable  care  might  have  known  of  it 
in  time  to  have  remedied  the  defect  before  the  accident  in  ques- 
tion, and  did  not  do  so,  then  the  city  is  liable  in  this  suit,  pro- 
vided the  jury  further  believe,  from  the  evidence,  that  the 
plaintiff  was  injured  and  suffered  damage  by  reason  of  the 
defective  walk,  as  chai-gcd  in  the  declaration,  and  that  he  was 
himself  in  the  exercise  of  ordinary  care  to  avoid  the  injury. 

§  9.  Slight  Negligence  will  not  Defeat  Recovery. — That  a 
traveler  on  a  public  street  is  held  to  tlie  exercise  of  only  ordi- 
nary care.  Slight  negligence,  which  is  a  want  of  extraordi- 
nary care,  will  not  defeat  a  recovery  for  an  injury,  received  in 
consequence  of  a  defect  in  the  street;  provided,  the  evidence 
shows  that  the  city  authorities  were  guilty  of  negligence,  in 
permitting  the  defect  to  exist  in  the  street,  and  that  tlie 
traveler  was  injured  thereby,  and  was  using  ordinary  care  to 
avoid  the  injury.  Gu-fflii  vs.  The  Town  of  Willow^  43  Wis., 
509. 

§  10.  Streets  and  Walks  to  be  Kept  Reasonably  Safe. — The 
court  instructs  the  jury,  as  a  matter  of  law,  that  a  citj'  is  not 
required  to  have  its  sidewalks  so  constructed  {oi'  kept  in  such 
conditioji)  as  to  secure  immunity  in  using  them;  nor  is  it  bound 
to  employ  the  utmost  care  and  exertion  to  that  end.  Its  duty, 
under  the  law,  is  only  to  see  that  its  sidewalks  are  reasonably 
safe  for  persons  exercising  ordinary  care  and  caution. 

And  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
the  sidewalk  was  so  constructed  as  to  be  sufliciently  level  and 
smooth  for  ordinary  travel,  and  so  built  that  it  would  not,  by 
reason  of  any  peculiarities  of  its  construction,  cause  snow  or 
ice  to  accumulate  thereon,  and  that  the  accident  was  attribu- 
table solely  to  the  slippery  condition  of  the  sidewalk,  occa- 
sioned by  a  recent  fall  of  snow,  and  that  the  sole  cause  of  the 
accident  was  the  temp.orary  slipperiness  of  that  part  of  the 
sidewalk  caused  by  the  recunt  fall  of  snow  thereon,  such  a  con- 
dition of  the  sidewalk  would  not  be  a  defect  for  which  the 
city  would  be  liable.  City  of  Chicago  vs.  McGiven^  78  Dl., 
347. 

24 


370  MUNICIPAL  COKPORATIONS. 

§  11.  Negligence  of  Driver. — The  law  is,  that  the  driver  of 
a  private  conveyance  is  the  agent  or  servant  of  the  person 
riding  in  such  conveyance,  provided  such  driver  is  employed 
by  him  or  subject  to  his  control,  and  if  such  person,  while 
riding  along  a  public  highway  or  street,  is  injured,  in  conse- 
quence of  obstruction  or  defects  negligently  permitted  to  re- 
main in  the  street  or  highwaj^,  and  the  driver  is  guilty  of  a 
want  of  ordinary  care  and  caution,  and  his  negligence  materi- 
ally contributes  to  such  injury,  then  the  person  injured  cannot 
recover,  as  against  the  city,  for  the  injury  thus  received. 
Prideaux  vs.  Mineral  Pointy  43  Wis.,  513;  Red.  Car.,  §  361; 
Lockhart  vs.  Lichtenthaler,  46  Penn.  St.,  151. 

§  12.  Not  Obliged  to  Open  Streets. — The  court  instructs  the 
jury,  that  cities  are  under  no  legal  obligation  to  open  up 
streets  for  the  use  of  the  public.  The  legal  obligation  of 
a  city  to  repair  streets,  sidewalks  and  bridges  within  its  cor- 
porate limits,  only  relates  to  such  as  are  opened  or  constructed 
under  its  authority,  or  those  which  its  officers  have  assumed 
control  over.  Craig  vs.  Sedalia,  63  Mo.,  417;  Shear.  &  Eed. 
on  Neg.,  §  127;  Wilso7i  vs.  The-  Mayor,  etc.,  1  Denio,  595; 
Joliet  vs.   Verleij,  35  111.,  58. 

There  is  no  legal  obligation  resting  upon  a  city  to  build 
sidewalks,  construct  gutters  or  pave  streets,  but  when  the 
city  does  make  these  improvements  for  the  benefit  of  the 
])ublic,  it  then  becomes  its  duty  to  use  all  reasonable  care  and 
exertions  to  keep  them  in  repair.  City  of  Alton  vs.  Ilojpe, 
68  111.,  167. 

§  13.  Degree  of  Care  Required.— The  jury  are  instructed, 
that  the  defendant  is  not  bound  to  any  greater  degree  of  care 
and  diligence  than  is  sufficient  to  keep  its  streets  and  side- 
walks in  a  reasonably  safe  condition,  and  if  any  accident  occurs 
when  they  are  in  such  reasonably  safe  condition,  the  defend- 
ant is  not  liable  for  such  accident. 

§  14.  Do  not  Insure  Safety. — The  jury  are  instructed,  that 
a  municipal  corporation  is  not  liable  for  every  accident 
that  may  occur  from  defects  in  its  sidewalks  or  streets.  Its 
officers  are  not  required  to  do  everything  that  human  energy 


NEGLIGENCE.  371 

and  ingenuity  can  possibly  do  to  prevent  the  happening  of 
accidents  or  injury  to  the  citizen.  If  they  have  exercised  a 
reasonable  care  in  that  regard,  they  have  discharged  their 
duty  to  the  public.     City  of  Centralia  vs.  Krouse^  6-i  111.,  19. 

The  city  is  not  an  insurer  or  a  warrantor  of  the  condi- 
tion of  lier  streets  and  sidewalks;  nor  is  every  defect  therein 
actionable,  though  it  may  cause  the  injury  sued  for.  It  is  suf- 
ficient to  relieve  the  city  from  liability  in  this  case  if  you  find 
from  the  evidence  that  the  street  (or  walk)  was  in  a  reasonably 
safe  condition  for  travel  at  the  time  the  accident  is  alleged  to 
have  occurred. 

If  you  believe,  from  the  evidence,  that  at  the  place  where 
the  plaintiff  met  with  the  injury  complained  of,  the  street  (or 
sidewalk)  was  at  the  time  in  a  reasonably  safe  condition,  your 
verdict  should  be  for  the  defendant.  City  of  Ind.  vs.  Gas- 
ton, 28  Ind.,  22i. 

§  15.  Liable  for  Negligence  of  Others,  When. — Although  tlie 
jury  may  believe,  from  the  evidence,  that  the  sidewalk  in 
question  was  constructed  by  a  private  person,  and  not  under 
the  direction  or  supervision  of  the  city,  still  this  would  not 
exempt  the  city  from  liability  from  defects  in  the  walk;  ]iro- 
vided,  the  jury  believe,  from  the  evidence,  that  the  walk  was 
so  constructed  as  to  be  dangerous  for  ordinary  travel,  and 
that  this  defect  was  known  to  the  ofhcei's  of  the  city,  or 
that  by  the  exercise  of  ordinary  care  they  might  have  known 
of  such  defect  in  time  to  have  remedied  it  before  the  accident. 
Bai'iies  vs.  TJie  Toion  of  Ifeioton,  46  la.,  567;  Cooley  on 
Torts,  626 ;  Wendell  vs.  Troy,  39  Barb.,  329 ;  Shear.  &  Red. 
on  Neg.,  §  147;  Centerville  vs.  Woods,  57  Ind.,  192 ;  Phelps 
vs.  Manlato,  23  Minn.,  276. 

It  is  the  duty  of  the  city  to  use  all  reasonable  care  and  vigi- 
lance in  the  selection  of  agents,  servants  and  contractors,  in 
making  improvements,  and  to  retain  control  and  superintend- 
ence over  them  in  the  performance  of  their  duties,  and  to 
enforce  such  ineasures  of  care  and  vigilance  as  will  guard  the 
public  against  exposure  to  injury,  so  far  as  this  can  reasonably 
be  done. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  where 
work  is  done  upon  the  streets  of  a  city,  there  is  a  reasonable  pre- 


372  MUNICIPAL  COEPOEATIONS. 

sumption  that  it  is  done  by  the  proper  authorities  of  the  city, 
and  in  a  suit  to  recover  damages  for  an  injury  occasioned  by 
the  negligent  manner  of  doing  such  work,  it  is  not  necessary, 
in  the  first  instance,  to  jirove  that  it  was  done  by  persons  em- 
ployed by  the  city,  as  this  will  be  presumed,  unless  the  con- 
trary appears  from  the  evidence. 

And,  in  this  case,  if  the  jury  believe,  from  the  evidence, 
that  the  injury  complained  of  was  caused  by  a  dangerous  {pile 
of  dirt  or  opening),  left  in  the  street  in  question  by  persons 
employed  by  the  city,  to  place  a  sewer  or  water  pipe  in  such 
street,  then  the  jury  are  instructed,  that  it  is  not  necessary  for 
the  plaintiff,  in  order  to  recover  in  this  suit,  to  prove  that  the 
city  authorities  had  actual  notice  tliat  such  *  *  *  was 
left  in  said  street;  provided,  the  jury  further  believe,  from 
the  evidence,  that  such  work  was  done  under  the  supervision 
of  the  {street  commissioner^  etc).  City  of  Chicago  vs.  Brophy, 
79  111.,  27T. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
let  out  the  job  of  filling  up  and  grading  {Main  street)  to  other 
persons,  at  so  much  per  yard,  the  grading  to  be  done  un-der 
the  supervision  of  defendant's  engineer,  and  that  such  engineer 
went  upon  the  ground  with  such  other  persons,  and  pointed 
out  to  them  where  to  take  the  soil  from  and  where  to  ])ut  it, 
and  such  other  persons  did  the  work  as  directed  by  the  engineer, 
then  the  law  is,  that  the  relation  of  master  and  servant  existed 
between  the  city,  the  engineer  and  such  other  persons  doing 
the  work,  and  the  city  is  liable  in  all  respects,  the  same  as  if 
it  had  done  the  work  by  men  employed  by  it  in  any  other  way. 
Nevins  vs.  City  of  Peoria,  41  111.,  502. 

The  jury  are  instructed,  that  if  the  city  authoritic-s  know- 
ingly permit  a  person  to  occupy  or  obstruct  a  street,  it  is  the 
duty  of  such  authorities  to  use  all  reasonable  care  and  precau- 
tions to  see  that  the  person  so  permitted  properly  guards  and 
protects  such  obstructions,  and  if  the  city  authorities  negli- 
gently fail  to  perform  such  duty,  the  city  will  be  liabiC  to  one 
who  is  injured  by  such  obstructions,  if  he  is  himself,  at  the 
time,  using  reasonable  care  to  avoid  the  injury.  Whether,  in 
this  case,  the  city  authorities  did  know,  etc.,  etc.,  are  ques- 
tions of  fact  for  the  jury,  to  be  determined  by  the  evidence- 
City  of  Ind.  vs.  Doherty,  71  Ind.,  5. 


NEGLIGENCE.  373 

The  defendant  liad  a  riglit  to  construct  water  works  for 
municipal  purposes,  and  for  the  use  of  the  inhabitants  of  the 
city,  and  for  that  purpose  to  lay  pipes  in  the  street,  and  to 
permit  others  to  do  so,  and  the  city  is  liable  for  any  damage 
sustained  by  a  person  while  traveling  in  the  street,  by  reason 
of  such  work  being  done,  unless  tlie  city  authorities,  or  the 
persons  doing  the  work,  wore  guilty  of  negligence  which  occa- 
sioned the  injury,  and  while  the  party  injured  was  himself 
using  reasonable  care  and  caution  to  avoid  the  injury.  City 
of  Logansport  vs.  DicJcs,  70  Ind.,  65. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 
city  officers  had  contracted  with,  etc.,  for  the  laying  of  the 
water  pipes  in  the  street,  still  the  city,  notwithstanding  such 
contract,  was  charged  with  the  duty  of  taking  all  reasonaljle 
precaution  to  keep  the  street  in  a  safe  condition,  for  use  in  the 
usual  manner,  so  far  as  this  could  reasonably  be  done,  while 
the  work  was  progressing,  and  if  you  believe,  from  the  evi- 
dence, that  the  city  officers  did  not  do  this  but  were  guilty  of 
negligence  in  permitting  a  dangerous,  etc.,  and  that  the  plaint- 
iff was  thereby  injured,  as  alleged  in  his  complaint,  then  the 
city  is  liable  for  such  iiijiny,  provided  the  jury  believe,  from 
the  evidence,  that  the  plaintiff  was  himself,  etc.  City  of 
Logansport  vs.  Dloks^  70  Ind.,  65;  Butler  vs.  Bangor^  67 
Me.,  385. 

* 

§  16.     Not  Liable  for  the  Negligence  of  Othei-s,  When. — The 

jury  are  instructed,  that  when  a  party,  without  the  consent  of 
the  authorities  of  an  incorporated  town,  digs  or  leaves  open  a 
dangerous  hole  or  pit  in  the  street,  and  a  person  is  thereby 
injured,  the  town  will  not  be  liable  for  such  injury,  unless  the 
authorities  have  actual  notice  of  the  nuisance,  or  it  has  re- 
mained a  sufficient  time,  so  that  in  the  exercise  of  ordinary 
care  and  diligence  they  ought  to  have  had  notice  of  the  dan- 
gerous condition  of  the  street.  Fahey  vs.  The  President^ 
etc.,  62  111.,  28. 

The  jury  are  instructed,  that  when  the  duty  is  imposed  by 
law  upon  a  city  corporation  to  keep  its  streets  in  safe  condition, 
for  use  by  the  public,  the  duty  cannot  be  shifted  off  upon  a 
person  employed  by  the  city  to  perform  it;  and  if  an  injury 
results  from  the  negligence  of  such  person  in  the  performance 


374  MUNICIPAL  COEPOEATIONS. 

of  such  duty,  the  corporation  will  be  liable  for  the  damage. 
The  City  of  Springfield  vs.  Le  Claire,  49  111.,  476. 

The  jury  are  instructed,  that  when  a  dangerous  place  is 
made  in  the  street  by  the  unlawful  act  of  third  parties,  un- 
known or  without  the  knowledge  or  consent  of  the  city 
authorities,  the  city  cannot  be  deemed  negligent  until  knowl- 
edge or  notice  of  such  defect  is  brought  home  to  the  officers 
of  the  city,  unless  the  dangerous  place  has  existed  for  such  a 
length  of  time  before  the  injury,  that  the  city  authorities,  in 
the  exercise  of  reasonable  care  and  diligence,  might,  and  ought 
to  have  known  of  its  existence. 

The  court  instructs  the  jury,  that  when  an  act  is  done  which 
is  unlawful  in  itself,  such  as  j)lacin;j,  cin  obstruction  in  a  public 
street,  which  detracts  from  the  safety  of  travelers,  the  author 
will  be  held  liable  for  an  injury  resulting  from  the  act,  although 
other  causes  subsequently  arising  may  contribute  to  the 
injury.      Welch  vs.  Lander^  75  111.,  93. 

§  17.  Miist  Have  Notice,  Actual  or  Instructive. — If  the  jury 
believe,  from  the  evidence,  that  the  sidewalk  in  which  the 
defect  is  alleged  to  have  been,  and  where  the  plaintiff  is  alleged 
to  have  been  injured,  was  properly  and  safely  constructed  and 
laid  down,  and  that  prior,  and  up  to,  or  about  the  time  of  the 
injury,  it  appeared  to  be  in  a  pro]")er  and  safe  condition,  then, 
if  there  be  no  evidence  that  the  defendant  had  actual  knowl- 
edge of  such  defect,  or  that  the  defect  existed  for  such  length  of 
time  before  the  in'ury,  that  the  defendant,  if  exercising  proper 
care  and  di'igence,  would  have  known  of  it,  the  jury  should 
lind  the  defendant  not  guilty.  Schvjeicl'hardt  vs.  St.  Louis,  2 
Mo.  App.,  571;  Ilutchins  vs.  Littleton.,  124  Mass.,  289;  Chicago 
vs.  Stearns.,  105  111.,  554;   Ilearn  vs.  Chicago.,  20  111.  App.,  249. 

Notwithstanding  the  jury  may  believe,  from  the  evidence, 
that  the  sidewa'k,  at  the  time  of  the  alleged  injury,  was  de- 
fective, yet  this  alone  would  not  be  sufficient  evidence  of  negli- 
gence on  the  part  of  the  defendant.  In  order  to  charge  tlie 
defendant  with  negligence,  it  must  appear,  from  the  evidence, 
not  only  that  the  sidewalk  was  defective  at  tlie  time  of  tie 
alleged  injury,  but  it  must  further  aj^pear  that  such  defect  was 
actually  known  to  the  city  through  some  of  its  otHcers,  agents 
or  servants,  or  that  the  defect  had  existed  for  such  a  length  of 


NEGLIGENCE.  375 

time  prior  to  the  alleged  injury,  that  tlu  city,  if  exercising 
ordinary  diligence,  would  or  should  have  known  of  the  defect. 
The  City  of  Chicago  vs.  McCarthij,  75  111.,  602;  Bartlett  vs. 
Kitterij^  OS  Me.,  358. 

A  city  is  bound  only  to  the  exercise  of  reasonable  prudence 
and  diligence  in  the  construction  of  its  sidewalks,  and  is  not 
required  to  foresee  and  provide  against  every  possible  danger 
or  accident  that  may  occur. 

It  is  only  required  to  keep  its  sti-eets  and  sidewalks  in  a 
reasonably  safe  condition,  and  it  is  not  an  insurer  against  acci- 
dents.    City  of  Chicago  vs.  Bixby,  84  111.,  82. 

§  18.  Defective  Sidewalk — Notice  Presumed,  When. — The  court 
instructs  the  jury,  that  when  the  sidewalk  of  a  city  is  out  of 
repair,  and  remains  so  for  such  a  length  of  time  that  the  public 
authorities  of  the  city,  in  the  exercise  of  reasonable  care  and 
prudence,  ought  to  have  discovered  the  fact,  then  actual  notice 
to  such  authorities  of  the  condition  of  the  walk  will  not  be 
necessary  to  hold  the  city  liable  for  injury  sustained  by  a  per- 
son, in  consequence  of  the  dangerous  condition  of  the  street 
if  he  is  himself  using  reasonable  care  to  avoid  such  injury 
Shear.  &  Eed.  Neg.,  §  148;  3Iayor  vs.  Sheffield,  4  Wall.,  189 
City  of  Sj)ringfeld  y&.  Doyle^  76  111.,  2n2;  SchweieMa;rdtv&: 
Si.  Louis,  2  Mo.  App.,  571;  Hume  vs.  N.  Y.,  74  N.  Y.,  264; 
Albrittian  vs.  Iluntsville,  60  Ala.,  480;  Chicago  vs.  Dale,  115 
111.,  386. 

The  jury  are  instructed,  that  the  defendant  is  bound  to  use 
reasonable  care  and  precaution  to  keep  and  maintain  its  streets 
and  sidewalks  in  good  and  sufficient  repair,  to  render  them 
reasonably  safe,  for  all  ])ersons  pas-ing  on  or  over  the  same; 
and  if  the  jury  believe,  from  the  evidence,  that  the  defendant 
failed  to  use  all  reasonable  care  and  precaution  to  keep  its 
sidewalk  in  such  repair,  and  that  the  injury  comi)lained  of  re- 
sulted from  that  cause,  as  charged  in  the  declaration,  and  that 
the  plaintiff  sustained  damage  thereby,  without  negligence  or 
want  of  care  on  plaintiff's  part,  then  lie  is  entitled  to  recover 
in  this  suit.  Chicago  vs.  Dale,  115  111.,  386;  Dillon  on  Munic- 
ipal Corporations,  §  996  et  seg. 

§   19.     Injury  to  Adjoining  Property — Changins:  Giade. —  The 


376  MUNICIPAL  COEPOEATIONS. 

jury  are  instructed,  that  a  municipal  corporation,  while  acting 
within  the  scope  of  its  authority,  in  making  excavations  in  a 
street,  for  the  inirpose  of  opening  it  or  improving  it,  if  using 
reasonable  care  and  skill  in  performing  the  work,  is  not  liable 
to  a  lot  owner  for  an  injury  resulting  therefrom  to  his  lot  or 
the  buildings  thereon.  Shear.  &  Red.  on  Neg.,  §  129;  City  of 
Quincy  vs.  Jones,  76  111.,  231;  Pontiao  vs.  Carter,  32  Mich., 
164;  Wegmann  vs.  Jefferson,  61  Mo.,  55. 

The  jury  are  instructed,  that  while  the  corporate  authorities 
of  cities  are  vested  with  power  to  grade  their  streets,  yet  the 
mode  in  which  the  power  is  to  be  exercised,  in  reference  to 
the  rights  of  others  in  the  enjoyment  of  their  property,  is 
limited  in  the  same  way  and  to  the  same  extent  as  the  power 
of  a  private  person  in  the  use  of  his  property,  and  if  the  au- 
thorities of  a  city  in  altering  or  changing  the  grade  of  the 
streets,  do  not  do  the  work  in  good  faith  and  with  reasonable 
care  and  skill,  to  avoid  damaging  the  adjoining  pro].erty 
owners,  the  city  will  be  liable  to  such  owners  for  all  damage 
directly  resulting  therefrom.  2  Dil.  on  Corp.,  §  783;  Callen- 
der  vs.  Marsh,  1  Pick.,  418;  Hadcliff's  Executors  vs.  Mayor, 
etc.,  4  Comst.,  195;  Delphi  vs.  Evans,  36  Ind.,  90:  Reading 
vs.  Kejypleman,  61  Penn.  St.,  233;  Hendershott  vs.  Oitityyiwa, 
46  la.,  658;  Mayor,  etc.,  vs.  Hill,  58  Ga.,  595;  City  of  B.  vs. 
Brolaw,  77  111.,  195;  Shear.  &  Redfld.  Neg.,  §  144. 

§  20.  Liable  for  Want  of  Reasonable  Care  Only. — The  jury 
are  instructed,  that  a  city  has  full  control  over  the  grades  of 
its  streets,  and  may  lower  or  elevate  them  at  will,  and  the 
owner  of  lots  adjacent  to  the  street  cannot  call  it  to  accoimt 
for  erj-or  in  judgment,  in  fixing  the  grade,  nor  recover  dam- 
ages for  inconvenience  or  expense  incurred  in  adjusting  their 
premises  to  the  grade  of  the  street,  provided,  the  city  author- 
ities exercise  reasonable  care  and  skill  in  the  performance  of 
this  work. 

That  the  authorities  of  a  city  have  a  right  to  alter  the  grades 
of  the  streets  at  tlieir  discretion,  and  if  this  is  done  with  rea- 
sonable care  and  skill,  no  liability  arises  from  their  acts. 
Neither  courts  nor  juries  can  inquire  whether  tlie  grade 
adopted  is  the  best  one  or  not,  and,  in  this  case,  the  only  ques- 
tion for  the  jury  is  whether,  in  doing  the  work  in  question, 


NEGLIGENCE.  377 

the  city  officers  acted  in  good  faith,  and  with  reasonable  care 
and  skill,  to  avoid  damage  to  the  plaintiff's  property.  Lee  vs. 
The  C Hi/  of  Minn.,  22  Minn.,  13;  Detroit  vs.  Bechnan,  M 
Mich.,  12.5;  Cheever  vs.  Ladd,  13  Blatchf.,  258;  Tate  vs.  Mo., 
etc.,  Ed.  Co.,  64  Mo.,  149. 

Contra:  The  jury  are  instructed,  that  the  owner  of  a  lot 
abutting  on  an  unimproved  street,  or  where  no  grade  has  been 
established  by  the  city  authorities,  erecting  a  building  thereon, 
assumes  the  risk  of  all  damage  which  may  result  from  the  city 
subsequently  establishing  a  grade,  and  improving  the  street  to 
conform  to  such  grade.  The  liabiHty  of  the  city  for  injuries 
to  a  building  abutting  on  a  street  by  the  grading  of  the  street, 
only  exists  when  the  building  was  erected. 

If  the  jury  believe,  from  the  evidence,  that  the  city,  in  im- 
•  proving  {Main  street)  in  said  city,  fixed  the  grade  and  caused 
to  be  constructed  sewers  and  drains  in  said  street,  to  carry  off 
the  surplus  water  which  necessarily,  in  case  of  rains,  would 
run  down  said  street,  by  reason  of  said  grading,  and  that,  on  or 
about,  etc.,  there  came  a  rain,  and  said  sewers  or  drains  were 
stopped  up,  or  were  otherwise  defective,  so  that  they  would 
not  carry  off  the  surplus  water,  and  thereby  the  water  from 
said  rain  was  forced  into  the  basement  of  the  plaintiff's  build- 
ing, and  the  plaintiff  thereby  damaged,  then  the  jury  should 
find  for  the  plaintiff  to  the  amount  which  the  proof  shows 
such  damage  to  be. 

The  jury  are  instructed,  that  the  city  of has  control  of 

all  streets  and  sidewalks  in  said  city;  and  if  the  jury  believe, 
from  the  evidence,  that  the  sidewalk  or  street,  in  front  of 
plaintiff's  premises,  pitched  toward  his  lot,  and  was  permitted 
so  to  be  constructed  by  said  city,  or  was  permitted  by  said  city 
so  to  remain  after  being  so  built  by  others,  after  a  reasonable 
time  in  which  to  have  changed  it,  then  the  city  cannot  shield 
itself  from  liability  for  flooding  plaintifl"'s  premises,  if  the  evi- 
dence shows  they  were  so  flooded,  on  account  of  the  pitch  of 
said  street  or  sidewalk.  Citij  of  Aurora  vs.  Gillet,  56  111., 
132. 

§  21.  Defective  Plan  of  Public  Improvement. — The  jury  are 
instructed,  that  a  city  cannot  be  made  liable  for  injuries  to 
persons  or  property  which  arise  from  a  defective  plan  of  a 


3TS  MUNICIPAL  COKPOKATIOXS. 

public  improvement,  altliongli  tlie  citj  may  bo  liable  for  want  of 
reasonable  care  or  skill  in  the  execution  of  the  work  itself;  and 
although  the  jury  may  believe,  from  the  evidence,  that  the  plan 
adopted  by  the  city  for  draining  the  streets,  was  defective  and 
unskillful,  and  likely  to  result  in  injury  to,  etc.,  still  the  city 
would  not  be  liable  for  any  injuries  resulting  from  such  defect 
or  want  of  skill  in  the  plan  adopted,  provided  the  city  was  not 
guilty  of  negligence  or  want  of  reasonable  care  and  skill  in 
doing  the  work  necessary  to  carry  out  the  plan.  Lansing  vs. 
Toolan,  37  Mich.,  152;  Detroit  vs.  Becl^man,  3i  Mich.,  125; 
Darling  vs.  Daigor,  68  Me.,  108;  Dever  vs.  Ca-peUi,  4  Col., 
25. 

If  the  jury  believe,  from  the  evidence,  that  the  city  authori- 
ties before  the  erection  of  the  building  in  question,  had  so  im- 
proved and  appropriated  the  street  to  ]mblic  use  as  to  fairly 
and  reasonably  indicate  to  the  public  that  the  grade  of  the 
street  had  been  permanently  fixed  and  that  no  change  therein 
would  be  made,  and  that  the  plaintiff  or  his  grantor,  relying 
on  such  corporate  acts  as  a  final  decision  as  to  the  wants  of  the 
public  regarding  the  grade  of  such  streets,  erected  the  build- 
ing in  conformity  to  such  grade,  then,  if  the  jury  further  be- 
lieve, from  the  evidence,  that  by  the  recent  improvement  and 
change  of  grade  of  said  street  the  plaintift''s  building  and 
other  improvements  connected  there  witli  have  been  injui-ed  and 
the  plaintiff  thereby  damaged,  then  the  defendant  is  liable 
therefor.  Cincinnati  vs.  Penny^  21  Ohio  St.,  499;  Mayer^ 
etc.,  vs.  mchol,  59  Tenn.,  338;  Elgin  vs.  Eat07i,  83  111.,  535; 
French  vs.  Milwaukee^  49  Wis.,  5S4;  Dore  vs.  Milwaukee^ 
42  Wis.,  108. 

§  22.  Clianging  Watorcoursesi. — The  court  instructs  the  jury, 
that  if  a  city,  in  exercising  its  power  of  changing  the  grade 
of  its  streets,  fails  to  exercise  reasonable  prudence  and  skill, 
it  will  be  liable  for  all  damages  that  result  from  such  failure. 

And  if  a  city,  in  fixing  the  grade  of  a  street,  or  in  after- 
wards changing  it,  flows  water  uj)on  a  lot  that  it  did  not  nat- 
urally carry  off,  the  city  will  be  liable  for  damages,  if  any 
are  caused  thereby,  Ashley  vs.  Fort  Ilnron^  35  Mich.,  2  6; 
City  of  B.  vs.  Brokaw^  77  111.,  194;  Kohs  vs.  Mlnnea.,  22 
Minn.,  159. 


NEGLIGENCE.  ST9 

The  court  further  instructs  the  jury,  that  a  city  has  no  more 
power  over  its  streets  than  a  private  person  has  over  his  own 
land.  A  city  has  no  right  to  turn  surface  water  onto  private 
property,  and  if  a  city,  in  fixing  the  grade  of  a  street,  turns  a 
stream  of  water  and  mud  onto  the  ground  or  into  the  cellar 
of  a  citizen,  or  creates  in  his  neighborhood  a  stagnant  pool, 
likely  to  generate  disease,  the  city  will  be  liable  in  damages, 
the  same  as  an  individual  would  for  doing  the  same  thin";. 
City  of  Aurora  vs.  Heed,  57  111.,  29. 

§  23.  Sewer  out  of  Repair. — The  jury  are  instructed,  as  a 
matter  of  law,  that  the  city  is  under  no  legal  obligation  to 
construct  drains  or  sewers  in  any  particular  portion  of  the 
city,  but,  if  it  does  build  drains  or  sewers  for  corporate  pur- 
poses, it  is  bound  to  exercise  reasonable  care  and  oversight 
over  them  to  keep  them  unobstructed  and  in  repair,  so  that 
adjoining  proi)erty  owners  shall  not  be  unnecestjarily  injured 
thereby.  And  in  this  case,  if  the  jury  believe,  from  tlio  evi- 
dence, that  the  city  either  built  the  sewer  in  question  or  has 
adopted  and  controlled  it  as  a  part  of  the  general  sewerage  of 
the  city,  then  the  city  was  bound  to  use  all  reasonable  and 
ordinary  care  and  supervision  over  it  to  keep  it  in  such  a 
state  of  repair  as  that  it  should  do  no  unnecessary  injury  to 
plaintili's  property  ;  and  if  you  further  believe,  from  the  evi- 
dence, that  the  city  authorities  did  not  exercise  reasonable  and 
ordinary  care  and  supervision  over  the  said  drain  or  sewer  to 
keup  it  in  repair,  but  carele-sly  and  negligently  permitted  it  to  " 
become  choked  up  and  out  of  repair,  and  that  plaintiff's  property 
has  been  damaged  thereby,  as  charged  in  his  complaint,  then  the 
city  is  liable  for  such  damages,  and  the  jury  should  find  for 
the  plaintiflF,  provided  you  further  find,  from  the  evidence, 
that  he  was  guilty  of  no  fault  or  negligence  which  contributed 
to  such  injury.     City  of  South  Bend  vs.  Paxon^  67  Ind.,  228. 

§  24.  Measure  of  Damages. — If  the  jury  believe,  from  the 
evidence,  that  the  plaintiff  was  injured  by  reason  of  the  de- 
fendant negligently  failing  to  keep  its  sidewalk  in  reasonably 
good  repair,  or  negligently  allowing  the  same  to  remain  in  an 
unsafe  condition,  as  explained  in  these  instructions,  and  with- 
out fault  on  his  part,  and  that  he  has  sustained  damage,  then 


380  MUNICIPAL  CORPOKATIONS. 

tlie  jury  have  a  right  to  find  for  him  such  an  amount  of  dam- 
ages as  the  jury  believe,  from  the  evidence,  will  compensate 
him  for  the  personal  injury  so  received,  and  for  his  loss  of 
time  in  endeavoring  to  be  cured,  and  his  expenses,  necessarily 
incurred  in  respect  thereto,  if  any  such  loss  or  expenses  have 
been  proved;  and  also  for  the  pain  and  suffering  undergone 
by  him,  and  any  permanent  injury,  if  any  such  has  been  proved. 


CHAPTER  XXXIV. 

NEGLIGENCE— RAILKOADS. 


Sec.     1.  Duty  to  furnish  safe  machinery,  etc. 

2.  Liable  for  the  acts  of  their  servants,  when. 

3.  Negligrence  2)er  se. 

4.  Plaintiff  must  exercise  ordinary  care. 

5.  Right  to  prescribe  rules. 

6.  Expelling'  a  person  from  the  cars. 

7.  Passengers  can  only  be  put  off  at  a  station. 

8.  Injuries  to  persons. 

FENCING    THE    TKACK. 

9.  Failure  to  comply  with  the  law,  negligence  per  se. 

10.  Fencing  the  track — Statutory  provisions. 

11.  Company  must  exercise  reasonable  care. 

12.  Company  held  only  for  reasonable  care — Casual  breach  in  fence. 

13.  Stock  unlawfully  running  at  large. 

14.  Obligation  to  fence  not  limited  to  adjoining  owner. 

15.  Cattle  guards. 

16.  Plaintiff's  contributory  negligence. 

17.  Stock  escaping  and  running  at  large. 

18.  What  plaintiff  must  prove  to  recover. 

INJUKIES    BY    FIRE. 

19.  Prima  facie  negligence. 

20.  Reasonable  care  required  to  prevent  the  spread  of  fire. 

21.  Must  provide  the  most  approved  apparatus  to  prevent  the  spread 

of  fire. 

22.  Dry  weeds  and  grass,  accumulating  along  right  of  way. 

23.  Degree  of  care  required  of  land  owner. 

24.  Reasonable  care  and  diligence  only  required  of  the  company. 

COLLISIONS    AT    HIGHWAY    CEOSSINGS. 

25.  Crossings  must  be  put  in  safe  condition. 

26.  Reasonable  care  required  at  crossings. 

27.  Negligence  by  driver. 

28.  Signals  to  be  given  at  crossings. 

29.  Rights  and  liabilities   of  companies  and  travelers,  equal  and 

mutual. 

30.  Company  not  to  suffer  tall  weeds  or  brush  to  obstruct  the  view. 

(381) 


382  NEGLIGENCE. 

31.  Care  required  of  travelers. 

32.  Care  to  be  proportioned  to  known  danger. 

33.  Contributory  negligence — Gross  negligence. 

34.  Negligence  per  se,  in  traveler. 

35.  Conduct  in  presence  of  sudden  danger. 

36.  Danger  must  be  the  result  of  the  negligence  charged. 

37.  Injury  to  stock  at  crossing. 

38.  Neglect  to  ring  the  bell. 

39.  Burden  of  proof  as  to  ringing  the  bell. 

40.  Must  exercise  reasonable  care  and  watchfulness  to  avoid  injuring 

stock. 

41 .  Speed  through  cities  and  villages. 

42.  Speed  not  limited  by  ordinance, 

CHILDREN. 

43.  Rules  as  to  children — Contributory  negligence. 

44.  Negligence  as  regards  children. 

SERVANTS. 

45.  Master  and  servant — Master  liable  to  servf.nt,  when. 

46.  Duty  towards  employes. 

47.  Servant  does  not  take  the  risk  of  dangers  not  incident  to  the 

business, 

48.  Servant  not  bound  to  inquire  whether  the  road   is  safely  con- 

structed, etc. 

49.  Negligence  of  the  company  in  employing  servant. 

60.  Reasonable  care  only  required  for  the  safety  of  employes. 

51.  PJmploye  assumes  all  ordinary  risks. 

52.  Servant  having  knowledge  of  defects. 

53.  Servant  must  use  reasonable  care  and  caution. 

54.  Negligence  of  fellow  servant. 

55.  Fellow  servants  defined. 

56.  Duty  to  make  rules  for  the  safety  of  servants, 

§  1.  Duty  to  Furnish  Safe  Machinery. — The  court  instructs 
the  jury,  that  it  is  the  duty  of  railroad  companies  to.  use  all 
reasonable  means  and  efforts  to  furnish  good  and  well  con- 
structed machinery,  adapted  to  the  purposes  of  its  use,  of  good 
material,  and  of  the  kind  that  is  found  to  be  safest  when  ap- 
plied to  use;  and  while  they  are  not  required  to  seek  and 
apply  every  new  invention,  they  mustadopt  such  as  are  found, 
by  experience,  to  combine  the  greatest  safety  with  practical 
nse.  Si.  Louis,  etc.,  Rd.  Co.  vs,  Yalirius.  56  Ind.,  511; 
Wedgewood  vs.  Chicago,  etc.,  Ed.  Co.,  41  "Wis.,  478;  Pitts- 
burgh R.  R.  Co.  vs.  Nelson,  51  Ind.,  150;  Porter  vs.  Hanni- 
bal, etc.,  Rd.  Co.,  60  Mo.,  160;  T.,  W.  <&  W.  Ry.  vs.  Freder- 
icls,  71  111.,  294. 


EAILKOADS.  383 

§  2.  Liable  for  the  Torts  of  their  Servants,  Wlien. — Eaihoad 
companies  are  responsible  to  passengers  for  the  unlawful  acts 
of  their  servants  and  agents  employed  in  running  their  trains, 
when  such  wrongful  acts  are  committed  in  connection  with 
the  business  intrusted  to  them,  and  spring  from,  or  grow  im- 
mediately out  of,  such  business.  Gasway  vs.  Atlanta,  etc., 
Rd.  Co.,  58  Ga.,  216;  Bass  vs.  Chicago,  etc.,  Rd.  Co.,  42  Wis., 
654;  Brown  vs.  Hannibal,  etc.,  Rd.  Co.,  66  Mo.,  588. 

You  are  instructed,  that  if  the  servants  of  a  railroad  com- 
pany, while  in  the  discharge  of  their  duties,  pervert  the  appli- 
ances of  the  company  to  wanton  or  malicious  purposes,  to  the 
injury  of  others,  the  company  is  liable  for  such  injuries.  C, 
B.  &  Q.  Rd.  Co.  vs.  Diclson,  63  111.,  151. 

§  3.  Negligence,  per  se. — The  court  instructs  the  jury,  that 
it  is  negligent  for  persons  engaged  in  using  cars  on  a  railroad 
track  to  put  a  car  in  motion  where  it  may  do  injury  to  others, 
without  making  any  provision  for  stopping  it,  or  examining 
to  see  whether  any  person  is  on  or  about  other  cars  on  .the 
same  track,  with  which  the  one  put  in  motion  may  collide; 
and  if  injury  results  therefrom  to  one  who  is  guilty  of  no  neg- 
ligence himself,  he  will  be  entitled  to  recover  for  such  injury. 
Nohle  vs.  Cunningham,  74  111.,  51;  Qiiackenhush  vs.  Chi.  <& 
If.  W.  R.  R.  Co.,  35  N.  W.  Eep.,  523. 

§  4.  Plaintiff  Must  Exercise  Ordinary  Care. — The  court  in- 
sti'ucts  the  jury,  that  in  an  action  against  a  railroad  company 
to  recover  for  injuries  occasioned  by  the  alleged  negligence 
of  the  company,  in  running  its  train,  although  the  servants  of 
the  com])any  may  have  been  guilty  of  negligence,  contribut- 
ing to  the  injury  complained  of,  still,  if  the  plaintiff  could,  by 
the  exercise  of  ordinary  care  and  prudence,  have  avoided  the 
injury,  he  cannot  recover.  Chi.  da  Alto7i  Rd.  Co.  vs.  Jacobs, 
63  III,  ITS. 

The  court  further  instructs  you,  that  to  authorize  a  re- 
covery for  injuries  done  by  a  railroad  company,  it  is  not 
enough  to  show  the  company  guilty  of  negligence,  but  it 
must  appear,  from  the  evidence,  that  the  injured  party  em- 
ployed all  reasonable  means  to  foresee  and  prevent  the  injury, 
or  else  it  must  appear,  from  the  evidence,  that  the  injury  was 


384  KEGLIGE^^CE. 

caused  by  the  willful  or  wantonly  reclcless  acts  of  the  servants 
of  the  company.     Wharton  on  Neg.,  §  300. 

If  you  believe,  from  the  evidence,  that  the  defendant  was 
guilty  of  negligence, as  charged  in  the  declaration,  and  that  the 
plaintiff  waa  injured  thereby,  and  that  the  plaintiff  w^as  him- 
self guilty  of  some  slight  degree  of  negligence,  this  would  not 
alone  prevent  a  recovery,  provided  the  jury  further  believe, 
from  the  evidence,  that  the  act  of  defendant  which  caused  the 
injury  was  done  by  tha  defendant  after  discovering  the  plaint- 
iff's negligence  and  that  the  defendant  could  have  avoided  the 
injury  by  the  exercise  of  reasonable  care.  Morris  vs.  The 
Chicago,etc.,A^  la.,  29;  27  Conn.,  393;  50  Mo.,  464;  18 Ga.,  699. 

§  5.  Right  to  Prescribe  Rules. — The  jury  are  instructed,  that 
a  railroad  company  has  a  right  to  require  of  its  passengers  the 
observance  of  all  reasonable  rules,  calculated  to  insure  the 
comfort,  convenience,  good  order  and  behavior  of  all  persons 
on  the  train,  and  to  secure  the  proper  conduct  of  its  business; 
and  if  a  passenger  wantonly  disregards  any  such  reasonable 
rule,  the  obligation  to  carry  him  farther  ceases,  and  the  com- 
pany may  expel  him  from  the  train  at  any  regular  station 
using  no  more  force  than  may  be  necessary  for  that  purpose 
JSandford  vs.  Eighth  Ave.,  etc.,  lid.  Co.,  23  K  Y.,  343;  I.  C. 
Rd.  Co.  vs.  Whiiinore,  43  111.,  420;  Crauiford  ys.  Cincinnati, 
etc.,  Rd.  Co.,  26  Ohio  St.,  580;  State  vs.  Chovin,  7  la.,  204; 
Shelton  vs.  Lalce  Shore,  etc.,  Rd.  Co.,  29  Ohio  St.,  214. 

The  court  further  instructs  you,  that  whatever  rules  tend  to 
the  comfort,  order  and  safety  of  the  passengers  on  a  railroad, 
the  companies  are  authorized  to  make  and  enforce;  but  such 
rules  nuist  be  reasonable  and  uniform.  A  rule  setting  apart  a 
car  for  the  exclusive  use  of  ladies,  and  genHemen  accom)ianied 
by  ladies,  is  a  reasonable  rule,  and  it  may  be  enforced.  C.  & 
if.  TF.  Rd.  Co.  vs.  Williams,  55  111.,  185;  Bass  vs.  Chi.  c&  N. 
W.  Rd.  Co.,  36  Wis.,  450;   Com.  vs.  Power,  7  Met.,  596. 

A  railroad  company  has  the  lawful  right  to  make  all  rea- 
sonably necessary  rules  for  the  conduct  of  its  employes,  and 
also  of  its  passengers. 

And  whether  such  rules  are  adequate  to  secure  the  safety 
of  others,  and  the  safe  management  of  its  trains,  is  a  question 
of  fact  for  the  jury.  C,  B.  &  Q.  R.  R.  Co.  vs.  McZallen, 
84  111.,  109;  Stone  vs.  C,  etc.,  Rd.  Co,  47  la.,  82. 


RAILROADS.  385 

The  court  further  instructs  3'ou,  tliat  the  use  of  grossly  pro- 
fane and  abusive  or  obscene  language,  by  a  passenger  in  a 
railway  car  where  there  are  ladies,  is  such  a  breach  of  deco- 
rum, no  matter  if  it  is  provoked,  as  will  work  a  forfeiture  of 
his  right  to  be  carried  as  a  passenger,  and  the  conductor  has  a 
right  to  cause  him  to  be  expelled  from  the  cars,  using  no  more 
force  than  is  necessary  for  that  purpose.  (7.,  B.  cfe  Q.  R.  R. 
Co.  vs.  Griffin^  68  111.,  499;  Redfld.  on  Car.,  §  459;  Yinton  vs. 
Middlesex,  11  Allen,  304. 

A  railroad  company  has  a  right  to  prescribe  reasonable 
rules  for  the  government  of  its  employes  in  the  conduct  of 
its  business  ujion  its  trains,  and  passengers  may  be  required  to 
conform  to  such  rules,  and  a  rule  requiring  a  conductor  to 
eject  from  the  train  a  passenger  who  refuses  to  produce  a 
ticket  or  pay  his  fare  on  demand  is  a  reasonable  one.  Whether, 
in  this  case,  the  defendant  had  such  a  rule  and  whether  the 
plaintiff  did  refuse  to  produce  a  ticket  or  pay  his  fare  on  de- 
mand, etc.,  etc.,  are  all  questions  of  fact  to  be  determined  by 
the  jury  by  a  preponderance  of  the  evidence.  Crawfoi'd  vs. 
Rd.  Co.,  26  Ohio  St.,  580;  Toledo,  W.  &  W.  Rd.  Co.  vs.  Wright, 
68  Ind.,  586. 

A  railroad  company  may  refuse  to  receive  as  a  passenger,  a 
person  who  is  so  intoxicated  as  to  be  disgusting,  offensive,  dis- 
agreeable or  annoying  to  the  other  passengers,  generally,  so 
long  as  he  continues  in  that  condition,  though  he  may  have 
purchased  a  ticket — though  aslight  intoxication,  such  as  would 
not  seriously  affect  the  conduct  of  the  passenger,  would  not 
justify  a  railroad  company  in  refusing  to  receive  and  carry  one 
as  a  passenger  who  had  purchased  his  ticket.  Pittsburg,  etc., 
Rd.  Co.  vs.  Van  Dyne,  57  Ind.,  576. 

§  6.  Expelling  a  Person  from  the  Cars. — The  jury  are  in- 
structed, that  if  the  conductor,  or  other  person  in  charge  of 
a  train  of  cars,  attempts  to  expel  a  person,  who,  by  the  rules 
of  the  company,  has  no  right  to  ride  thereon,  he  must  use  no 
more  force  than  is  necessary  to  accomplish  that  purpose ;  and 
if  he  does  use  more  force  than  is  necessary,  and  the  person  so 
put  off  is  thereby  injured,  the  company  will  be  liable. 

If  a  person  gets  on  a  railroad  car,  in  order  to  ride  without 
payment  of  fare  and  without  the  consent  of  the  persons  in 
25 


386  KEGLIGElN'CE. 

charge  of  tlie  train,  lie  may  be  ejected  from  the  cars,  pru- 
dently, and  in  such  a  manner  as  not  unnecessarily  to  endanger 
his  personal  safety ;  but  if  reasonable  care  and  ])rudence  are 
not  exercised,  and  the  person  is  thereby  injured,  the  company 
will  be  liable,  and  it  cannot  excuse  itself  upon  the  ground  that 
the  wrong  was  mutual.  Breen  vs.  Tex.  &  P.  Rd.  Co.,  50 
Tex.,  43. 

You  are  further  instructed,  that  to  render  a  railroad  com- 
pany liable  for  injuries  resulting  from  an  expulsion  from  one 
of  its  cars,  it  is  not  incumbent  on  the  person  injured  to  show 
that  actual  force  or  violence  were  resorted  to  or  used  upon 
his  person.  If  you  believe,  from  the  evidence,  that  threats  to 
use  force  and  violence  were  made,  accompanied  by  acts  of  such 
a  character  as  were  reasonably  calculated  to  induce  in  the 
mind  of  an  ordinarily  rational  person  the  belief  that  force  and 
violence  would  be  used,  unless  he  leave  the  train,  and  plaintiff 
left  in  consequence  of  such  threats,  then  the  threats  would  be 
equivalent  to  the  use  of  force  and  violence,  as  regards  this 
suit. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  was 
injured  by  the  acts  of  the  conductor  of  one  of  defendant's 
trains,  as  charged  in  the  declaration,  and  that  such  acts  were 
done  by  the  conductor  while  acting  for  the  company,  and 
within  the  scojje  of  his  employment,  as  such  conductor,  then 
such  acts  are  in  law  the  acts  of  the  railroad  company. 

§  7.  Passenger  Can  Only  be  Put  Off  at  a  Station — {Illinois 
Statute). — That  if  a  person  on  a  railroad  train  or  car,  on  rea- 
sonable demand,  refuse  to  pay  his  fare,  the  conductor  of  the 
train  may  remove  such  person,  or  cause  him  to  be  removed 
from  the  car,  at  any  regular  station,  but  only  at  a  regular 
station,  unless  the  person  to  be  removed  consents  to  be  put  off 
at  some  other  place. 

§  8.  Tnjui'ies  to  Passengers. — The  court  instructs  the  jury, 
as  a  matter  of  law,  that  railroad  corporations  are  required  to 
use  all  reasonable  precautions  for  the  safety  of  the  traveling 
public,  whether  in  the  construction  and  operation  of  their 
engines  and  cars,  or  the  erection  of  their  depots,  or  the  con- 
struction of  their  tracks  or  the  approaches  to  their  trains,  and 


RAILROADS.  387 

it  is  their  duty  to  furnish  safe  approaches  to  their  passenger 
cars ;  if  anj  of  these  are  insecure  or  unsafe,  when  it  could 
have  been  avoided,  by  a  reasonable  effoi-t  and  precaution,  and 
injury  results,  the  company  will  be  liable  for  damages  result- 
ing therefrom.     Chi.  c&  A.  Rd.  Co.  vs.    Wilson,  63  111.,  1G7. 

FENCING    TRACK. 

NoTR. — The  obligation  of  railroad  companies  to  fence  the  track  of  their 
roads,  to  grive  warning  at  highwaj- crossings,  and  their  liability  for  damages 
occasioned  by  fire  escaping  from  their  locomotives,  are  mainly  imposed  or 
regulated  by  the  statutes  of  the  several  states;  and  these  statutes  differ  some- 
what in  their  details.  The  following  instructions  can  readily  be  adapted 
to  the  statutes  of  the  different  states,  by  making  the  changes  necessary  for 
that  purpose. 

§  9.  Failure  to  Comply  with  the  Law,  Negligence  per  se. — 
The  jury  are  instructed,  as  a  matter  of  law,  that  if  a  railroad 
company,  or  its  servants,  fail  to  perform  a  duty  prescribed  by 
statute  or  ordinance,  such  failure  is  negligence  of  itself;  pro- 
vided, it  is  the  proximate  cause  of  an  injury  to  the  person  or 
property  of  another.  Penn.  Co.  vs.  Ilensil^  70  Ind.,  569; 
Thompson,  Neg.,  419,  §  1232. 

§  10.  Statutory  Provisions — Fencing  the  Track. — The  jury  are 
instructed,  that  by  the  law  of  this  state,  every  railroad  corpo- 
ration is  required,  within  {six  months)  after  any  part  of  its  line 
is  open  for  use,  to  erect,  and  thereafter  maintain,  fences  on 
both  sides  of  so  much  of  its  road  as  is  open  for  use,  suitable 
and  sufficient  to  prevent  cattle,  horses,  sheep,  hogs  or  other 
stock  from  getting  onto  such  railroad;  except  at  the  cross- 
ings of  public  roads  and  highways,  and  within  such  portions 
of  cities,  and  incorporated  towns  and  villages,  as  are  laid  out 
and  platted  into  lots  and  blocks. 

If  you  believe,  from  the  evidence,  that  the  {horse)  in  ques- 
tion got  upon  the  defendant's  railroad  track  upon  the  occasion 
referred  to,  not  at  the  crossing  of  a  public  road  or  highway, 
and  not  within  any  portion  of  a  city,  incorporated  town  or 
village,  which  is  laid  out  and  platted  into  lots  and  blocks,  and 
that  that  portion  of  the  road  had  been  in  operation  six  mouths 
and  more,  before  the  accident  in  question;  and  if  you  fur- 
ther believe,  that  the  fence  on  the  side  of  the  track,  at  the 


388  NEGLIGENCE. 

point  in  question,  tlirongli  tlio  neglio^ence  of  the  defendant, 
was  out  of  repair,  and  was  not  sufficient  to  prevent  horses 
getting  onto  such  railroad,  and  that  the  (horse)  got  onto  the 
track  by  reason  of  the  insufficiency  of  the  fence,  and  was 
there  injured,  as  charged  in  the  declaration,  then  it  is  imma- 
terial whether  the  company  was  careful  or  negligent  in  run- 
ning its  engine  and  cars.  The  neglect  to  keep  up  a  sufficient 
fence  fixes  the  liability  of  the  company  for  all  damage  to  stock 
occasioned  thereby;  provided,  the  owner  of  the  stock  is 
guilty  of  no  fault  or  neirligence  contributing  to  the  injury. 
If  you  believe,  from  the  evidence,  that  the  stock  in  question 
got  upon  the  defendant's  railroad  track  at  a  point  where  the 
company  was,  by  law,  bound  to  erect  and  maintain  fences,  as 
explained  in  the  preceding  instructions;  that  that  portion  of 
the  road  had  been  in  operation  [six  months)  and  more,  and 
that  the  fence,  where  the  stock  got  upon  the  track,  was,  through 
tlie  carelessness  and  neglect  of  the  company,  not  then  suitable 
and  sufficient  to  prevent  the  stock  getting  upon  the  track,  and 
that  the  stock  did,  in  fact,  get  upon  the  track  by  reason  of  the 
insufficiency  of  the  fence,  and  was  there  injured  and  damaged, 
without  any  fault  or  negligence  on  the  pai  t  of  the  plaintiff, 
then  the  plaintiff  has  a  right  to  recover  in  this  suit. 

§  11.  Company  Must  Exercise  Reasonable  Care. — The  court 
insti'ucts  the  jury,  as  a  matter  of  law,  that  when,  by  the  use 
of  ordinary  care  and  diligence,  on  the  part  of  the  servants  of 
a  railroad  company,  animals  straying  upon  its  ti'acks  can  be 
saved  from  injury,  then  it  is  the  duty  of  such  servants  to  exer- 
cise that  degree  of  care,  and  a  failure  to  do  so,  if  proved, 
renders  the  company  liable  for  any  damages  thereby  sustained. 
T.,  P.  <&  W.  Rd.  Go.  vs.  Ligraham,  58  III,  120;  Wharton 
on  Neg.,  §  357;  ParJcer  vs.  Ed.  Co.,  34  la.,  399;  Ed.  Co.  vs. 
Smith,  22  Ohio  St.,  227. 

Although  you  may  believe,  from  the  evidence,  that  the 
stock  in  question  got  upon  the  railroad  track  of  the  defend- 
ant, without  any  negligence  upon  the  part  of  the  company,  still 
if  you  further  believe,  from  the  evidence,  that  the  person  in 
charge  of  the  engine,  by  the  exercise  of  reasonable  and  ordi- 
nary care,  and  without  danger  to  his  engine  and  train,  could 
have  avoided  the  injury,  and  did  not  do  so,  then  the  comj^any 


EAILKOADS.  889 

would  be  liable  for  such  injury ;  provided,  that  you  further 
believe,  from  the  evidence,  that  the  owner  of  the  stock,  or  the 
persons  having  it  in  charge,  wore  guilty  of  no  negligence 
which  contributed  to  Guch  injury.  Wharton  on  Neg.,  §  893; 
Chi.  cfe  N.  W.  Ed.  Co.  vs.  Barrie,  55  111.,  226;  Fames  vs.  S. 
<&  L.  Rd.  Co.,  98  Mass.,  560;  LocJce  vs.  St.  Paul,  etc.,  15 
Minn..  350;  JS'eedham  vs.  Railroad.,  37  Cal.,  409;  Skejphard 
vs.  Railroad,  35  N.  Y.,  641. 

The  court  further  instructs  you,  that  when  a  railroad  com- 
pany fails  to  fence  its  track,  as  required  by  statute,  it  innst  see 
that  its  servants  so  conduct  its  trains  that  injuries  shall  not 
result  to  stocic  tluit  mvy  got  upon  its  track,  if  it  can  be  done 
by  care  and  caution.  If  the  company  fails  to  fence  its  track, 
it  takes  u[)on  itself  the  hazard,  and  when  injury  results  there- 
from it  must  respond  in  damage.  Toledo,  P.  <£;  W.  Rd.  Co. 
vs.  Zaoer!/,  71  111.,  522;  Toledo,  W,  (&  W.  Rd.  Co.  vs.  Mc- 
Gimiis,  71  III.,  346. 

§   12.     Company  Only  Held  to  Reasonable  Care — Casual  Breach 

in  Fence. — The  court  instructs  the  jury,  that  while  railroad 
companies  are  not  required  to  keep  such  a  guard  on  their 
roads  as  to  see  a  breach  in  the  fence  and  repair  it  the  instant 
it  occurs,  still  the  law  does  require  them  to  keep  such  a  force 
as  will  discover  breaches  and  openings  in  their  fences,  and  to 
close  them  within  a  reasonable  time ;  and  if  they  neglect  to 
do  so  within  a  reasonable  time,  it  is  a  neglect  of  duty  that  will 
render  them  liable  for  an  injury  to  stock  escaping  onto  the 
road  through  such  openings ;  provided,  the  owner  or  the  ])er- 
son  having  the  stock  in  charge  is  guilty  of  no  negligence 
which  contributed  to  the  injury.  C.  cfi  N'.  W.  Rd.  Co.  vs. 
Harris,  54  111.,  528. 

If  you  believe,  from  the  evidence,  that  the  defendant  had 
erected  a  fence  suitable  and  sufficient  to  prevent  horses  and 
cattle,  sheep  and  other  stock  from  getting  upon  the  railroad  at 
the  point  where  the  animals  in  question  got  upon  the  track, 
and  had  maintained  the  fence  in  good  repair  up  to  [the  even- 
ing before  the  accident),  and  that  the  injury  was  occasioned  by 
the  fence  being  broken  down  at  the  time  of  the  accident,  then 
negligence  on  the  part  of  the  defendant  ought  not  to  be 
inferred,  unless  you  further  find,  from  the  evidence,  that  the 


390  NEGLIGENCE. 

servants  of  the  company  knew  of  the  fence  bcino;  down,  or 
else  tliat  it  had  been  down  for  sncli  a  length  of  time  that,  in 
the  exercise  of  reasonable  care  and  watchfulness,  they  ought 
to  have  known  of  its  bringdown,  and  failed  to  repair  it  within 
a  reasonable  time  thereafter.  C.  &  A.  lid.  Co.  vs.  Umphen- 
our,  69  111.,  198. 

The  court  further  instructs  you,  as  a  matte:-  of  law,  that 
when  a  railroad  is  inclosed  by  a  suitable  and  sufficient  fence, 
and  a  casual  breach  occurs  therein,  without  the  knowledge  or 
fault  of  the  companj^  and  through  such  breach  stock  get  u])on 
the  track  and  are  injured,  the  company  is  not  liable,  nnless  it 
has  had  a  reasonable  time  to  discover  such  bi'each,  or  lias  been 
notified  and  fails  to  repair  \vitliin  tr  reasonable  time,  and  befoi-e 
the  injury  occurred.  Shearm.  &Redfield  on  Neg.,  517;  Boh- 
inson  vs.  The  Grand  Trunk  Bd.  Co.,  32  Mich.,  322 ;  Davis 
vs.  Chicago,  etc.,  lid.  Co.,  40  la.,  292 ;  Indianapolis,  etc.,  Rd. 
Co.  vs.  Truitt,  24  Ind.,  162;  Ind.  c&  St.  Louis  lid.  Co.  vs. 
Ball,  88  111.,  368. 

If  you  believe,  from  the  evidence,  tliat  on  {the  day  lefore 
the  injury)  the  defendant  had  a  good  and  sufficient  fence  to 
prevent  horses,  cattle,  sheep,  hogs  and  other  stock  from  getting 
onto  the  track,  at  the  point  in  question,  and  that  after  that  it 
was  blown  down,  or  broken  down  by  trespassers,  or  otherwise, 
without  the  fault  of  the  defendant,  and  that  wliile  tlie  fence 
was  so  down,  the  plaintifli's  stock  got  tJirough  the  broken  fence 
and  was  injured,  before  the  defendant  had  a  reasonable  time 
in  which  to  repair  it,  then  the  defendant  would  not  be  liable 
for  injuries  resulting  from  the  fence  being  out  of  repair. 

If  you  believe,  from  the  evidence,  that  defendant  had  a 
good  and  sufiicient  fence  on  the  side  of  its  road,  through 
])laintiff's  farm  or  pasture,  until  shortly  before  the  accident, 
and  that  it  was  broken  down  by  trespassers,  or  by  unruly  stock, 
or  blown  down  by  wind,  and  that  plaintiff's  horses  got  througli 
the  fence  before  defendant  had  reasonable  time  to  repair  it, 
then  you  should  find  for  the  defendant. 

The  court  further  instructs  you,  that  when  a  railroad  com- 
pany builds  and  maintains  a  good  and  sufficient  fence  through 
a  farm,  and  it  is  blown  down,  burnt  down,  or  thrown  down  by 
trespassers,  and  without  the  fault  of  the  railroad  company, 
then  the  company  has  a  reasonable  time  in  which  to  repair  the 


EAILKOADS.  39 1 

fence,  and  it  is  not  responsible  for  any  damages  which  mav 
ensue  solely  from  the  insufficiency  of  the  fence  until  such 
reasonable  time  hae  elapsed.  /  O.  Bd.  Co.  vs.  Swearingen^  47 
111.,  20G;  Gill  vs.  I2d.  Co.,  27  Ohio  St.,  240. 

§  13.  Stock  Unlawfully  Running  at  Jjur^e. — The  court  in- 
structs the  jury,  that  at  the  time  in  question  it  was  unlawful 
to  permit  cattle  or  liorses  to  run  at  large,  at  and  within,  etc., 
and  if  the  jury  believe,  from  the  evidence,  that  the  plaintiff 
voluntarily  permitted  the  horse  in  question  to  run  at  large,  at 
and  within,  etc.,  and  under  such  circumstances  that  it  might 
reasonably  have  been  foreseen  or  anticipated  that  the  horse 
might  get  upon  the  defendant's  track,  then  the  ]:)laintiff  can. 
not  recover  of  the  defendant  for  the  killing  of  the  horse  by 
one  of  its  trains,  upon  the  ground  alone  that  the  company  had 
failed  to  fence  its  track  at  the  place  where  the  animal  was 
killed.  Wharton  on  Neg.,  §  900  ;  P.  P.,  cfc  J.  Bd.  Co.  vs. 
Champ,  75  111.,  577;  Indiana  Bd.  Co.  vs.  Shimer,  17  Ind., 
295  ;  Jef.,  etc.,  Bd.  Co.  vs.  Adams,  43  Ind.,  4  )2;  Pearson  vs. 
MilwauJcee,  etc.,  45  la.,  496. 

The  fact  that  the  owner  of  stock  permits  it  to  run  at  lare-e, 
in  violation  of  the  act  prohibiting  domestic  animals  from  run- 
ning at  large,  does  not  relieve  railroad  companies  from  their 
duty  to  fence  their  roads,  nor  from  their  liability  for  stock  in- 
jured in  consequence  of  their  failure  to  do  so;  and  the  ques- 
tion whether  the  owner  of  the  stock  has  been  guilty  of  con- 
tributory negligence  in  permitting  them  to  run  at  large,  is  one 
of  fact  to  be  determined  by  the  jury  from  all  the  circumstances 
of  the  case.  And  to  .render  the  owner  of  the  stock  guilty  of 
contributory  negligence,  in  permitting  his  stock  to  run  at  large, 
it  must  appear,  from  the  evidence,  that  he  did  so  under  such 
circumstances  that  the  natural  and  probable  consequence  of  so 
doing  was  that  the  stock  would  go  upon  the  railroad  track  and 
be  injured.     Evnng  vs.  Chicago  <&  A.  Bd.  Co.,  72  III.,  25. 

The  court  instructs  you,  that  the  fact,  if  proved,  that  the 
plaintiff  permitted  his  stock  to  run  at  large,  in  violation  of  the 
law  prohibiting  domestic  animals  from  running  at  large,  does 
not  relieve  the  defendant  from  its  duty  to  maintain  a  suitable 
and  sufficient  fence  along  the  line  of  its  road,  if  you  find,  from 
the  evidence,  under  the  instructions  of  the  court,  that  the  de- 


392  NEGLIGENCE. 

fendant  was  otherwise  bound  to  do  so;  nor  from  liability  for 
stock  injured  in  consequence  of  its  failure  to  do  so,  if  you  find, 
from  the  evidence,  under  the  instructions  of  the  court,  that 
the  defendant  is  othei'wise  liable  therefor.  Rd.  Co.  vs.  Lull, 
2S  Mich.,  510;  L.  Is''.  A.  &  O.  \s.  WMicsell,  68  lud.,  297; 
\Vhiie\s.  Utica,  etc.,  Rd.  6*0.,  15IIun,  833;  Cairo  Rd.  Co.yQ' 
Murray,  82  111.,  76. 

The  question  whether  the  plaintiff  wac  guilty  of  contributory 
negligence  in  permitting  his  cattle  to  run  at  large,  is  one  of 
fact  to  be  determined  by  the  jury  from  all  the  circumstances  of 
the  case.  And  to  render  him  guilty  of  contributory  ncgl  igcnce, 
in  permitting  his  stock  to  run  at  large,  the  jury  mnt;t  believe, 
from  the  evidence,  that  he  did  so  under  such  circumstances 
ihat  the  natural  and  ])robable  consequence  of  so  doing  was, 
that  the  stock  would  go  upon  the  railroad  track  and  be  injured. 
In  the  absence  of  an  order  of  the  county  commissioners  (or 
a  vote  of  the  inhabitants,  etc.,)  permitting  stock  to  run  at  large, 
the  plaintiff  was  in  duty  bound  to  keep  his  stock  on  his  own 
premises,  or  to  use  all  ordinary  and  reasonable  means  and  appli- 
ances for  that  purpose,  and  if  he  knowingly  and  voluntarily 
suffered  his  stock  to  run  at  large,  in  the  immediate  vicinity  of 
that  part  of  defendant's  road  where  it  was  not  bound  by  law 
to  fence,  as  explained  in  these  instructions,  and  if  you  further 
believe,  from  the  evidence,  that  the  (colts),  while  so  suffered 
to  run  at  large,  got  upon  the  track  of  defendant's  road  at  a 
point  where  it  was  not  bound  by  law  to  fence  as  explained,  etc., 
and  were  then  killed,  the  plaintiff  cannot  recover  unless  such 
killing  was  willful  or  wantonly  reckless.  I7id.  (&  C.  <&  L. 
Rd.  Co.  vs.  Harter,  38  lud.,  557;  £arnes  vs.  JS.  (&  L,  R.  Co., 
98  Mass.,  560. 

§  14.     Obligation  to  Fence  not  Limited  to  Acyoining  Owner. — 

The  obligation  to  construct  and  maintain  fences  uj)on  both 
sides  of  their  roads,  imposed  by  the  laws  of  this  state  upon 
railroad  companies,  is  not  limited  to  owners  and  occu])iers  of 
adjoining  lands,  but  extends  to  tlie  j)ublic  generally. 

"Where  cattle  running  at  large  without  the  fault  of  the 
owner,  enter  the  inclosed  field  of  another  person  through 
which  a  railroad  passes,  and  thence  go  upon  the  track  of  the 
road  by  reason  of  a  want  of  sufhcient  fence,  and  are  injured, 


KAILKOADS.  393 

t]ie  raili-oad  company  will  bo  liable,  provided  they  have  not 
built  a  good  and  sufficient  fence  (according  to  tlie  statute)  or 
had  allowed  the  fence  to  become  out  of  repair  after  notice 
thereof,  and  a  reasonable  time  for  its  repair,  lid.  Co.  vs. 
StejphensoR  et  al.,  24  Ohio  St.,  4S. 

§  15.  Cattle  Guards. — In  order  to  keep  its  road  securely 
fenced,  the  statute  of  this  state  requires  a  railroad  company 
to  construct  and  keep  in  repair  cattle  guards  on  each  side  of  its 
track  at  all  highway  crossings.  And  in  this  case,  if  the  jury 
believe,  etc.  Plttsbut'g,  O.  db  St.  L.  Rd.  Co.  vs.  di^by^  55  Ind., 
567 

§  16.  Plaintiff's  Contributory  Negligence. — The  jury  are  in- 
structed, that  when  a  railway  company  fences  its  track,  as 
required  by  statute,  and  the  fence  afterwards  becomes  de- 
fective, an  action  against  the  company  for  injuries  to  liorses 
or  cattle  straying  upon  the  track,  through  such  defective  fence, 
cannot  be  maintained,  if  it  appears  that  the  owner  of  the 
animals  was  guilty  of  negligence,  which  naturally  and  directly 
contributed  to  such  injury.  Jones  vs.  The  Sheboygan  cfi  Fond 
du  Lao  Ed.  Co.,  42  Wis.,  306. 

§  17.  Stock  Escaping  and  Running  at  Large. — If  the  jury  be- 
lieve, from  the  evidence,  that  the  horse  in  question  broke 
out  of  the  pasture  and  went  upon  the  railroad  track,  without 
any  fault  or  negligence  on  the  part  of  the  plaintiff,  and  was 
there  killed,  and  that  such  killing  was  the  i-esult  of  negligence, 
and  of  a  want  of  ordinary  care  and  reasonable  caution  on  the 
part  of  defendant's  servants,  then  the  plaintiff  was  not  guilty 
of  such  contributory  negligence  as  will  prevent  a  recovery  in 
this  case.      T.,  P.  c&  W.  Rd.  Co.  vs.  Johnson,  74  III,  83. 

§  18.  What  the  Plaintiff  Must  Prove  to  Recover. — The  court 
instructs  the  jury,  that  to  entitle  the  plaintiff  to  recover,  he 
must  prove  every  material  allegation  in  his  declai-ation,  b}"^  a 
preponderance  of  evidence.  The  jury  must  believe,  from  the 
evidence,  that  the  place  where  the  animal  got  upon  the  track 
was  at  a  point  where  the  defendant  was  bound  by  law  to  fence; 
tJ»at  is,  that  it  (was  not  at  the  crossing  of  a  public  road  or 


394:  NEGLIGENCE. 

highway,  and  was  not  within  that  portion  of  any  city,  incor- 
porated town  or  village,  which  is  laid  out  and  platted  into  lots 
and  blocks);  and  further,  that  defendant's  road,  at  that  point, 
had  been  in  operation  {six  months)  or  more,  and  that  the  fence, 
through  the  negligence  or  carelessness  of  the  defendant,  was 
not  sufficient  to  turn  horses,  cattle  and  othei-  stock;  and  if  the 
plaintiff  has  failed  to  prove  either  of  these  things,  by  a  ]irepon- 
derauce  of  evidence,  the  y.wy  should  liud  for  the  defendant. 

INJURIES  BY  FIKE. 

§  19.  Prima  Facie  Ne2:ligenee. — The  court  instructs  the  jury, 
that  if  they  believe,  from  the  evidence,  that  the  plaintiii's 
property  was  injured  by  fire,  caused  by  fire  or  sparks  escaping 
from  defendant's  locomotive,  while  passing  along  the  railroad, 
in  manner  and  form  as  charged  in  tlie  plaintiff's  declaration, 
then,  under  the  laws  of  this  state,  these  facts  make  a  ^yrima 
facie  case  of  negligence  against  the  defendant;  and  the  bur- 
den of  proof  is  then  upon  the  defendant  to  rebut  this  'prima 
facie  case,  by  showing  affirmatively  that  at  the  time  in  ques- 
tion the  engine  was  properly  constructed  and  equipped  with 
the  best  approved  appliances  for  preventing  the  escape  of  fire; 
that  these  appliances  were  all  in  good  repair  and  condition,  as 
regards  the  escape  of  fire,  or  that  all  reasonable  care  and  cau- 
tion had  been  taken  to  keep  them  in  such  i-epair  and  condition, 
and  that  the  engine  was  carefully  and  sivillfully  handled,  as 
regards  the  escape  of  fire  therefrom;  provided,  the  plaintiff 
was  guilty  of  no  fault  or  negligence  contributing  to  the  injury. 
P.,  a  d3  St.  Louis  Ed.  Co.  vs.  Campbell,  bO  111.,  443;  Kellogg 
vs.  G.  &  N.  W.  Ed.  Co.,  26  Wis.,  223;  Kesee  vs.  C.  c&  R.  W., 
30  Ta.,  78;  Cooley  on  Torts,  661.  Contra:  Wharton  on  Neg., 
§  868-870. 

§  20.     Reasonable  Care  Required  to  Prevent  Spread  of  Fire. — 

It  is  the  duty  of  a  raih-oad  company  to  take  all  reasonable  pre- 
cautions to  prevent  the  spread  of  fire  from  its  locomotives. 
And  while  property  owners  adjoining  take  the  risk  of  injuries 
unavoidably  produced  by  fire  used  for  generating  steam,  yet, 
for  any  negligence  in  the  use  of  it,  the  company  will  be  liable. 
Proof  of  the  destruction  of  property,  by  fire  escaping  from 


EAILKOADS.  395 

a  locomotive,  raises  a  prima  facie  Ciise  of  negligence,  which 
the  defendant  must  rebut  b/  showing  the  absence  of  negli- 
gence, by  a  preiionderance  of  evidence,  or  that  the  plaintiff's 
own  fault  or  negligence  contributed  to  the  injury.  Coale  vs. 
Hannibal,  etc.,  R.  R.  Co.,  00  Mo.,  227. 

If  the  jury  believe,  from  the  evidence,  that  plaintiff's  prop- 
erty was  injured  by  lire  escaping  from  defendant's  engine, 
while  passing  along  the  railroad,  as  charged  in  plaintiff's  decla- 
ration, then  this  makes  2^ prima  facie  case  of  negligence  against 
the  defendant;  and  it  is  not  enough  to  rebut  i\\h  prima  facie 
case  to  show  that  the  engine  was  originally  constructed  with 
the  best  and  most  approved  appliances  and  improvements  to 
])revent  the  escape  of  fire.  The  law  imposes  upon  the  com- 
pany and  its  employes  the  duty  of  keeping  a  vigilant,  careful 
watch  to  see  that  the  engine  is  kept  in  proper  repair,  so  as  not 
to  be  unnecessarily  dangerous  to  property  in  the  vicinity  of 
the  road;  and  unless  the  defendant  has  shown,  by  a  preponder- 
ance of  evidence,  that  the  engine  in  question  was  in  such  good 
repair  and  condition  at  the  time  of  the  injury  cum[)lained  of, 
or  that  all  reasonable  ]jrecautions  had  been  taken  to  have  it  in 
such  repair  and  condition,  then  the  defendant  has  not  rebutted 
such  prima  facie  case  made  against  it;  provided  the  jury 
believe,  from  the  evidence,  that  the  plaintift''s  own  fault  or 
negligence  did  not  contribute  to  the  injury.  C.  <&  A.  Rd. 
Co.  vs.  Quaintance^  58  111.,  3S9 

§  21.  Must  Provide  Most  ImproAed  Apparatus  to  Prevent 
Escape  of  Fire,— The  jury  are  instructed,  that  railroad  compa- 
nies ai-e  required  by  law  to  keep  constantly  in  use  the  most  ap- 
proved machinery  and  apparatus  to  prevent  the  escape  of  fire 
from  their  engines,  to  the  injury  of  property  along  their  lines^ 
so  far  as  this  can  be  done  by  the  exercise  of  all  reasonable  care, 
skill  and  vigilance.  T.,  P.  &  W.  Rd.  Co.  vs.  Pindar,  53  111., 
447;  G.  &  A.  R.  R.  Co.  vs.  Pennell,  94  111.,  449;  C.  &  A.  R. 
R.  Co.  vs.  Quaintance,  58  111.,  389. 

The  law  does  not  require  a  railroad  company  to  provide  and 
use  the  very  best  known  appliances  that  mechanical  skill  and 
ingenuity  have  been  able  to  devise  and  construct  to  prevent  the 
escape  of  sparks  from  its  locomotives,  but  they  are  required  to 
use  all  reasonable  means  to  that  end,  and  where  a  new  improve- 


396  KEGLIGEJSrCE. 

inp.nt  of  such  appliances  has  been  made,  or  a  new  invention 
introduced,  which  has  been  tested  and  generally  approved  as 
better  than  that  it  is  using,  it  is  i-equired  to  adopt  and  use  the 
better  appliances.  Toledo  W.  <&  W.  Rd.  Go.  vs.  Corii^  71 
III,  493. 

The  court  further  instructs  the  jury,  that  no  matter  what 
mechanical  appliances  were  on  the  smoke-stack,  or  engine,  to 
prevent  the  escape  of  lire,  if  the  jury  believe,  from  the  evi- 
dence, that  the  tire  got  out  through  the  negligence  of  the 
defendant's  engineer  or  fireman,  in  such  case  the  defend- 
ant would  be  liable,  and  the  jury  should  find  the  issues  for 
the  plaintiff;  provided,  the  jury  further  find,  from  the  evidence, 
that  the  plaintiff's  own  negligence  did  not  contribute  to  the 
spread  of  the  fire. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  in 
question  the  tire  escaped  from  defendant's  engine,  tlirough  the 
negligence  of  its  servants  and  employes,  and  was  thereby  com- 
municated to  the  fence  and  fields  of  the  plaintiff,  and  further, 
that  the  plaintiff's  own  negligence  in  no  manner  contributed 
to  the  starting  or  spread  of  the  fire,  then  the  jury  should  find 
for  the  plaintiff,  and  assess  his  damages  at  such  an  amount  as 
the  evidence  shows  the  plaintiff'  has  sustained  by  reason  of  the 

fire. 

If  the  jury  believe,  from  the  evidence,  that  the  fire  in  ques- 
tion originated  from  defects  in  the  construction  of  defendant's 
engine,  which  might  have  been  I'emedied  or  prevented  by  the 
exercise  of  reasonable  care  and  skill,  then  the  defendant  is  liable 
for  all  the  damage  caused  by  such  tire,  so  far  as  the  same  has 
been  proved,  if  any  has  been  proved;  provided,  the  jury  further 
believe,  from  the  evidence,  that  the  plaintiff"'s  own  fault  or 
negligence  in  no  manner  contributed  to  the  lighting  or  spread- 
ing of  snch  tire. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant's 
servants,  in  charge  of  the  engine,  did  not  exercise  reasonable 
care  and  caution  in  the  running  and  management  of  the  said 
engine,  and  that  the  tire  in  question  was  caused  by  their  failure 
so  to  do,  then  the  defendant  is  liable  for  all  the  damage,  if  any, 
sustained  by  "the  plaintiff,  and  occasioned  by  said  fire;  provided, 
the  jury  further  believe,  from  the  evidence,  that  the  plaintiff's 
own  fault  or  negligence  in  no  manner  contributed  to  the  light- 
ing or  spreading  of  said  fire. 


RAILROADS.  397 

§  22.  Dry  WcjMlsaiul  Grass. — If  tlie  jury  beliovc,  from  the 
evidence,  that  the  defendant,  negligently  and  carelessly,  al- 
lowed dry  grass,  weeds,  and  other  combustible  material,  to 
accumulate  on  its  right  of  way  adjoining  plaintiff's  premises,  so 
as  to  unnecessarily  increase  the  hazard  from  fire,  and  that  by 
reason  of  such  accumulation  of  combustible  miaterial,  the  fire 
was  kindled,  and  communicated  to  the  fence  and  field  of  the 
plaintiff,  and  further,  that  the  plaintiff's  own  negligence  in  no 
manner  contributed  to  the  kindling  or  the  spreading  of  the 
fire,  tlien  the  jury  should  find  for  the  plaintiff  the  amount  of 
damages,  if  any,  which  are  proved  to  liave  resulted  from  said 
fire.  And  in  such  case  it  makes  no  difference  whether  the 
best  appliances  to  prevent  tlie  escape  of  fii-e  were  or  were  not 
used  on  the  engine  from  which  the  fire  escaped,  if  the  jury 
believe,  from  tlie  evidence,  that  the  fire  did  escape  from  de- 
fendant's engine.  Flyim  vs.  San  Francisco  Rd.  Co.,  40  Cal., 
14;  Ilartin  vs.  W.  U.  Ed.  Co.,  23  Wis.,  437;  H  we7j  \s. 
Nourse,  54  Me.,  256;  Ingersoll  vs.  Stockridge.  etc.,  lid.  Co., 
8  Allen,  438;  /.  C.  Ed.  Co.  vs.  Nunn,  51  111.,  78;  Wharton  on 
Neg.,  §  873;  Poepper  vs.  M.  etc.,  Ed.,  G7  Mo.,  715;  Jo7ies  vs. 
M^C.  E.  E.  Co.,  59  Mich.  437. 

If  the  jui'y  believe,  from  the  evidence,  that  anyone  ormore 
of  the  fires  which  are  complained  of  by  the  plaintiff  in  this 
case,  were  caused  by,  or  originated  from,  defects  in  the  con- 
struction of  the  defendant's  engine,  which  might  have  been 
remedied  by  the  exercise  of  reasonable  and  ordinary  care  and 
skill,  or  from  the  carelessness  of  the  defendant's  servants  in 
charge  of  the  engine,  and  that  the  ])laintiff  was  damaged  there- 
by as  charged  in  the  declaration,  and  that  the  plaintiff  was 
guilty  of  no  negligence  which  contributed  to  the  injury,  then 
the  jury  should  find  the  issues  for  the  plaintiff,  and  assess  his 
damages  at  such  a  sum  as  they  believe,  from  the  evidence,  he 
has  sustained  from  such  careless  or  negligent  acts. 

§  23.  Degree  of  Care  Required  of  Land  Owner. — Tiie  court 
instrncts  the  jury,  that  the  owner  of  land  adjoining  a  railroad 
track  is  as  much  bound  to  keep  liis  land  free  from  unusual  and 
dangerous  accumulations  of  combustible  matter  as  a  railroad 
company  is  its  right  of  way.  And  if  the  owner  or  occupant 
permits  an  unusual  and  dangerous  accumulation  of  dead  grass, 


398  "  NEGLIGEXCE. 

dry  leaves,  or  other  combustible  material  to  accnmnlate  on  his 
land  next  to  the  company's  right  of  way,  and  a  fire  is  ignited 
on  the  right  of  way,  and  is  thence  communicated  to  the  lields 
adjoining,  by  means  of  such  unusual  and  dangerous  accumula- 
tions of  combustible  material,  then  the  negligence  of  the 
owner  will  be  held  to  liave  contributed  to  the  loss  and  injury, 
and  in  such  a  case  the  owner  of  the  property  injured  cannot 
recover  for  such  injury,  unless  the  jury  believe,  from  the  evi- 
dence, thatliis  negligence  was  but  slight,  and  the  negligence 
of  the  railroaJ  comi)any  w^as  gross,  as  explained  in  these 
instructions.  C.  &  N.  ^Y.  vs.  Simonsori,  25  111.,  504;  Ohio  & 
31.  Rd.  Co.  vs.  ShayiefeeU  ^7  Hh,  497. 

The  jury  are  instructed,  that  in  determining  the  question, 
wlicther  or  not  the  defendant  was  guilty  of  negligence,  which 
contributed  to  the  fire  in  question,  in  permitting  grass,  dry 
weeds  or  leaves  to  accumulate  within  its  right  of  way  at  the 
point  where  the  fire  in  question  occurred,  the  jury  should  con- 
sider and  determine  from  the  evidence,  whether  the  defend- 
ant permitted  such  an  accumulation  of  dry  grass,  weeds  and 
leaves  or  other  combustible  material  upon  its  right  of  way  at 
the  point  in  question,  as  would  not  have  been  likely  to  be  per- 
mitted by  an  ordinarily  careful  and  prudent  man  upon  his  own 
premises,  if  his  property  were  exposed  to  the  same  hazard. 
Snyder  vs.  Pittsburg,  etc.,  Rd.  Co.,  11  "W.  Ya.,  14. 

The  court  instructs  you,  as  a  matter  of  laAV,  that  it  is  not 
negligence  on  the  part  of  the  owner,'  or  occupant,  of  ]'roperty 
injured  by  fire  escaping  from  an  engine  passing  along  a  rail- 
road, that  he  has  used  the  property  in  the  manner,  or  permitted 
the  .^ame  to  be  used,  or  remain  in  the  condition  in  which  it 
would  have  been  used  or  remained,  had  no  railroad  passed 
through  or  near  it.  Fltjnn  vs.  San  Francisco  &  San  Jose  Rd. 
Co.,  40  Cal.,  14;  Kellogg  vs.  C.  &  N.  TF".  Rd.  Co.,  26  Wis., 
223 ;  Rd.  Co.  vs.  Salmon,  39  K  J.  L.,  299. 

The  court  instructs  you,  that  the  defendant  was  not  bound 
to  furnish  the  very  best  or  most  improved  kind  of  machinery 
or  apparatus  to  prevent  the  escape  of  fire  from  its  engine ;  and 
if  you  believe,  from  the  evidence,  that  the  engine,  etc.,  con- 
nected with  the  same  were  reasonably  safe,  and  such  as  are 
ordinarily  used  for  the  purpose  for  which  these  were  intended, 
and  that  the  defendant  was  not  otherwise  guilty  of  negligence, 
then  the  defendant  would  not  be  liable  in  this  case. 


EAILROADS.  399 

Althoiigh  you  may  believe,  from  tlie  evidence,  that  an 
improvement  has  been  made  and  patented  upon  engines  similar 
to  the  one  in  question,  or  upon  the  apparatus  used  in  connec- 
tion therewith,  for  preventing  the  escape  of  lire,  yet  the 
defendant  was  not,  on  that  account,  bound  to  purchase  or  use 
such  improvement;  tlie  defendant  was  only  under  obligation 
to  use  reasonable  and  ordinary  care  In  providing  suitable  and 
safe  machinery,  and  to  provide  such  as  was  reasonably  safe. 
Wharton  on  Neg.,  §  635,  822;  Camp  Point  Mfg.  Co.  vs. 
Ballou,  71  111.,  417. 

§  24.  Reasonable  Care  and  Diligence  only  Required  by  the  Com- 
pany.— The  court  instructs  the  jury,  that  raih-oad  companies 
are  only  bound  to  exercise  reasonable  diligence  and  care  to 
prevent  fire  or  sparks  from  escaping  from  their  locomotives, 
while  running  on  their  roads,  and  in  keeping  their  track  or 
right  of  way  free  and  clear  from  combustible  material,  so  as 
to  prevent  injury  by  fire  to  farms  or  projjerty  along  the  lines 
of  their  roads;  and,  in  this  connection,  reasonable  care  and 
diligence  is  such  care  and  diligence  as  a  careful,  prudent  and 
skillful  man  would  observe,  under  like  circumstances,  to  pre- 
vent injury  to  his  own  property,  equally  exposed;  and  if  the 
jury  believe,  from  the  evidence,  that  the  defendant,  in  this 
case,  did  exercise  all  such  reasonable  care,  diligence  and  skill 
to  prevent  injury,  by  a  fire,  to  the  property  of  the  plaintiff, 
that  is  all  the  law  required,  and  the  defendant  is  not  guilty  of 
negligence. 

Although  you  may  believe,  from  the  evidence,  that  the  fire 
in  question  originated  on  defendant's  right  of  way,  by  reason 
of  fire  escaping  from  one  of  its  engines,  still,  if  you  further 
believe,  from  the  evidence,  that  such  engine  was  properly  con- 
structed, and  had  all  the  most  approved  appliances  and  inven- 
tions for  preventing  the  escape  of  fire,  and  that  the  defendant 
exercised  all  reasonable  care,  diligence  and  watchfulness  to 
keep  the  same  in  repair,  and  further,  that  the  defendant  used 
all  reasonable  care  and  diligence  to  prevent  dry  weeds  and 
grass,  and  other  combustible  materials,  from  accumulating  un 
and  near  its  right  of  way  where  the  fire  originated,  and  also 
that  defendant's  servants  used  all  such  care  and  diligence,  both 
in  running  and  managing  the  engine,  and  in  keeping  the  track 


400  NEGLTGENCE. 

clear  to  prevent  fires,  as  prudent  and  careful  men  are  accus- 
tomed to  use  under  like  circumstances,  then  you  should  find 
the  defendant  not  guilty. 

Though  you  may  believe,  from  the  evidence,  that  the  plaint- 
iffs timber  and  grass  were  injured  by  reason  of  fire  escaping 
from  defendant's  engine,  as  charged  in  the  dec''aration,  still, 
the  defendant  is  not  liaWe  therefor,  if  you  further  believe, 
from  the  evidence,  that  the  engine  in  question  and  its  ap])li- 
ances  for  preventing  the  escape  of  fire,  were  the  most  ap- 
proved construction,  and  were  then  in  good  condition  and 
repair,  as  regards  the  escape  of  fire;  and  provided,  you  fur- 
ther believe,  from  the  evidence,  that  the  defendant,  its  agents 
and  servants,  were  not  guilty  of  any  neglect  of  reasonable  care 
in  reference  to  the  lighting  or  spread  of  said  fire. 

The  jury  are  instructed,  as  a  matter  of  law,  that  although 
they  may  believe,  from  the  evidence,  that  sparks  from  de- 
fendant's engine  set  fire  to  plaintiff's  barn,  as  alleged  in  the 
declaration,  still,  if  the  evidence  further  shows  that  the  engine 
was  in  gocd  condition,  protected  by  all  modern  improvements 
and  appliances  to  prevent  the  escape  of  fire,  not  out  of  repair, 
that  the  engineer  in  charge  of  the  same  was  competent  and 
skillful,  that  he  handled  the  engine  in  a  proper  and  skillful 
manner,  then  the  law  is  for  the  defendants,  and  the  jury  have 
no  discretion  in  the  matter,  and  they  should  find  the  defendant 
not  guilty. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 
injury  complained  of  was  caused  by  sparks  escaping  from  de- 
fendant's locomotive,  this  alone  is  not  sufficient  to  prove 
negligence  on  the  part  of  defendant.  In  order  to  warrant  a 
verdict  in  this  case,  the  jury  must  believe,  from  the  evidence, 
not  only  that  the  injury  was  caused  by  sparks  escaping  from 
defendant's  engine,  but  it  must  further  appear  from  a  pre- 
ponderance of  the  evidence,  that  the  defendant  was  guilty  of 
negligence  in  permitting  such  st  arks  to  escape,  or  in  permit- 
ting (as  alleged  in  the  declaration).  Ruffner  vs.  (7.,  etc.^  Rd. 
Co.,  34  Ohio  St.,  96. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
constructed  a  highway  crossing  at  the  point  in  question,  and 
that,  taking  into  account  the  location,  nature  of  the  ground 
and  all  the  surroundings  of  the  place,  the  crossing  was  con- 


KAILEOADS.  401 

structed  in  such  a  manner  as  to  render  it  easy  to  approach  and 
cross  by  travelers  and  teams  on  the  highway,  without  danger 
to  persons  using  reasonable  and  ordinary  care,  then  the  de- 
fendant did  ail  tliat  was  required  of  it  in  making  the  cross- 
ing, and  would  not  be  guilty  of  negligence,  as  regards  the 
manner  of  constructing  the  crossing.  Ind.^  St.  L.  lid.  vs. 
Stout,  53  Ind.,  143. 

HIGmvAT    CE08SINGS. 

§  25.  Must  be  put  in  Safe  Condition. — By  the  law  of  this 
state,  every  corporation  owning  or  operating  a  railroad  in  this 
state,  is  required  to  construct  reasonably  safe  crossings  at  all 
points  where  it  intersects  a  public  highway;  and  it  is  liable 
for  all  injuries  resulting  from  neglect  of  this  dntj'-,  if  the 
party  injured  is  guilty  of  no  negligence  contributing  to  such 
injury.     Farley  vs.  The  C,  R.  I.,  etc.,  Ed.  Co.,  42  la.,  234. 

§  26,     Reasonable  Care  Required  at  Highway  Crossings. — The 

jury  are  instructed,  that  although  a  person  may  be  improperly 
or  unlawfully  upon  a  railroad  track,  that  fact  alone  will  not 
discharge  the  company  or  its  employes  from  the  observance 
of  reasonable  care  ;  and  if  such  a  person  is  run  over  by  the 
train,  and  killed  or  injured,  the  company  will  be  responsible, 
if  its  employes  could  have  avoided  the  accident  by  the  exer- 
cise of  reasonable  and  ordinary  care  and  watchfulness.  Isabel 
vs.  Hannibal,  etc.,  Bd.  Co.,  60  Mo.,  475. 

§  27.  Negligence  of  Driver. — According  to  the  admitted 
facts  in  this  case,  the  plaintiff  (or  deceased),  at  the  time  of  the 
accident,  was  being  driven  across  the  railroad  track  by  one 
E.,  in  a  lumber  wagon,  and  you  are  instructed  by  the  court,  if 
you  believe,  from  the  evidence,  that  there  was  any  negligence 
on  the  part  of  the  driver  of  the  wagon,  which  contributed  to 
the  injury  in  question,  then  that  negligence  has  the  same  effect 
on  the  plaintiff's  right  to  recover  as  if  the  negh'gence  had 
been  that  of  the  plaintiff  (or  deceased)  himself.  Lake  Shore 
&  Mich.  Southern  Bd.  Co.  vs.  Miller,  25  Mich.,  274. 

If  the  jury  believe,  from  the  evidence,  that  the  driver  of 
the  wagon  was  employed  by  the  plaintiff  to  drive,  etc.,  and 
26 


402  KEGLIGENCE. 

that  there  was  ueglic^ence  on  the  part  both  of  the  defendant 
and  of  the  driver,  which  contributed  directly  to  the  accident, 
then  tlio  jury  have  no  right  to  strike  a  balance  between  them, 
so  as  to  find  a  verdict  for  tlie  plaintiff,  but  in  such  case  the 
jury  should  find  a  verdict  for  the  defendant. 

If  you  believe,  from  the  evidence,  that  the  defendant  was 
guilty  of  negligence  or  a  want  of  ordinary  care  and  skill  in  the 
construction  of  its  track  at  the  road  crossing  in  question,  and 
that  the  plaintiff  was  injured  thereby  in  attempting  to  cross 
the  track,  and  that  he  was  not  himself  guilty  of  any  negli- 
gence that  contributed  directly  to  such  injury,  and  that  such 
injury  caused  his  death,  then  your  verdict  should  be  for  the 
plaintiff.     Ind.  &  &t.  L.  lid.  Co.  vs.  Stout,  53  Ind.  l-iS. 

The  jury  are  instructed,  that  the  defendant  had  a  right  to 
build  its  road  across  the  highway  described  in  the  complaint, 
but,  in  doing  so,  it  was  required  to  restore  the  highway  to  its 
former  state  of  usefulness,  so  far  as  it  was  rca  onably  practicable, 
and  so  as  not  unnecessaiily  to  im]>air  the  usefuhiess  of  the 
highway  or  render  it  unnecessarily  dangerous  in  crossing.  But 
whether,  in  this  case,  the  defendant  was  gnilty  of  a  want  of 
ordinary  care  and  skill,  etc.,  etc.,  are  questions  of  fact  to  be 
determined  by  the  jury  from  all  the  evidence  in  the  case. 

If  you  believe  from  the  evidence,  that  the  driver  of  the 
team  was  guilty  of  any  degree  of  negligence,  which  contrib- 
uted directly  to  the  injury,  then  the  jury  should  find  for  the 
defendant,  even  though  you  believe,  from  the  evidence,  that 
the  negligence  of  the  defendant,  in  some  measure,  caused  the 
injury  complained  of. 

Although  the  jury  may  believe,  from  the  evidence,  that  at 
the  time  of  the  injury  complained  of,  the  plaintiff  was  riding 
in  a  wagon  driven  by  one  A.  B.,  and  that  the  said  A.  B.,  as 
such  driver,  was  guilty  of  negligence  which  contributed 
directly  to  the  injury  complained  of,  still,  if  the  jury  further 
believe,  from  the  evidence,  that  the  plaintiff  was  merely  rid- 
ing for  pleasure  with  the  said  A.  B.,  and  upon  his  invitation, 
and  that  the  plaintitf  had  no  right  nor  authority  to  control  the 
movements  of  the  said  horses  and  wagon  or  their  driver,  and 
did  not  exercise  any  such  control,  then  the  contributory  negli- 
gence of  the  driver  would  not  prevent  a  recovery  by  the 
plaintiff  in  this  suit,  provided  the  jury  further  believe,  from 


EAILEOADS.  403 

the  evidence,  tliat  the  defendant  was  guilty  of  negh'gencc,  as 
charged  in  the  declaration,  and  that  the  plaintiff  was  injured 
thereby,  and  also,  that  the  plaintiff  was  not  himself  guilty  of 
any  negligence  which  contributed  to  the  injury  Dye7'  vs. 
Erie  Rd.  Co.,  71  N.  Y.,  228. 

§  28.  Signals  to  be  Given  at  Road  Crossings. — The  court  in- 
structs the  jury,  that,  by  the  laws  of  tliis  state,  every  railroad 
company  is  required  to  have  a  bell  of  at  least  (30)  pounds 
weight  and  a  steam  whistle  placed  and  kept  on  each  locomo- 
tive, and  to  cause  the  same  to  be  rung  or  wdiistled  at  the  dis- 
tance of,  at  least,  {eighty)  rods  from  the  place  where  the  rail- 
road crosses  a  public  highway,  and  to  keep  the  same  ringing 
or  whistling  until  the  highway  is  reached. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant's 
agents  or  servants  in  charge  of  the  engine  in  question,  omitted 
to  ring  a  bell  or  sound  a  whistle  continuously  for  the  distance 
of  {eightif)  rods  before  reaching  the  highway  crossing,  sucli 
omission  constitutes  ^  prima  facie  case  of  negligence  on  the 
part  of  the  defendant;  and  if  the  jury  further  believe,  from 
the  evidence,  that  the  plaintiff  was  struck  and  injured  at  the 
railroad  crossing  in  question,  as  charged  in  the  declaration,  in 
consequence  of  the  omission  to  ring  the  bell  or  sound  the 
whistle,  while  he  was  himself  exercising  all  reasonable  care 
and  caution,  in  that  behalf,  then  the  defendant  is  liable  to  the 
plaintiff  for  the  loss  and  damage  sustained  by  him,  by  reason 
of  such  injury,  if  any  such  loss  or  damage  has  been  proved. 

The  jury  are  instructed,  as  a  matter  of  law,  that  the  omis- 
sion by  the  defendant,  or  its  servants,  to  ring  the  bell  or  sound 
the  whistle  at  public  crossings,  if  proved,  is  not  of  itself  suffi- 
cient to  authorize  a  recovery  by  a  party  injured,  if  the  jury 
believe,  from  the  evidence,  that  the  complaining  party  might, 
by  the  exercise  of  ordinary  care,  have  avoided  the  accident, 
notwithstanding  such  omission. 

§  29.  Rights  and  Liabilities  of  Railroad  Companies  and  Travel- 
ers are  Equal  and  Mutual. — The  court  instructs  the  jury,  that 
railroad  companies,  under  their  charters,  have  the  same  rights 
to  use  that  portion  of  the  public  highway  over  which  their 
track  passes  as  the  public  have  to  use  the  same  highway. 


404  NEGLIGENCE. 

Their  rights  and  those  of  the  piibh'c,  as  to  the  use  of  the  high- 
way at  snch  point  of  intersection,  arc  mutual  and  reci|)rocal; 
and,  in  the  exercise  of  such  rights,  both  the  company  and 
those  using  the  highway  must  have  due  regard  for  the  safety 
of  others,  and  use  every  reasonable  effort  to  avoid  injury  to 
others,  Ind.  &  St.  Louis  lid.  Co.  vs.  /Siahles,  62  111.,  313; 
Shearm.  &  Red.  on  Neg.,  §  481;  Penn.  lid.  Co.  vs.  Ueileman, 
49  Penu.  St.,  60;  Cleveland,  etc.,  Rd.  Co.  vs.  Terry,  8  Ohio 
St.,  570. 

The  jury  are  instructed,  that  if  a  railroad  crosses  a  common 
road  on  the  same  level,  those  traveling  on  either  have  a  legal 
right  to  pass  over  the  point  of  crossing,  and  to  require  rea- 
sonable care  and  caution  of  those  traveling  on  the  other  road 
to  avoid  a  collision;  that  while  a  passing  train,  from  its  force 
and  momentum,  will  have  tiie  preference  in  crossing  first,  yet 
those  in  charge  of  it  are  bound  to  give  reasonable  warning, 
so  that  a  person  about  to  cross  with  a  team  and  wagon  may 
stop  and  allow  the  train  to  pass,  and  such  wai-ning  must  be 
reasonable  and  timely,  so  far  as  the  circumstances  will  reasona- 
bly admit  of.     C,  B.  cfi  Q.  Rd.  Co.  vs.  Lee,  87  111.,  454. 

If  the  jury  believe,  from  the  evidence,  that  the  injury  com- 
plained of  was  occasioned  by  a  collision  between  the  team  and 
wagon  of  the  plaintiff  and  a  locomotive  engine  of  the  defend- 
ant, on  a  public  road,  at  a  place  where  such  road  crossed  the 
railroad  of  the  defendant,  and  that  the  plaintiff  used  ordinary 
care  and  caution  to  avoid  a  collision,  and  that  the  collision  was 
owing  to  the  negligent,  careless  and  unskillful  manner  in  which 
the  servants  of  the  defendant  managed  the  locomotive  and 
train  of  cars  attached,  as  charged  in  the  declaration,  then  the 
jury  should  find  a  verdict  for  the  plaintiff. 

The  court  further  instructs  the  jury,  that  if  they  believe, 
from  the  evidence,  that  the  engineer  or  fireman  on  the  loco- 
motive which  struck  the  wagon  of  the  deceased,  and  caused 
his  death — if  they  believe,  from  the  evidence,  his  death  was 
so  caused — could,  by  the  exercise  of  reasonable  care  and  watch- 
fulness, have  seen  the  deceased  in  time  to  liave  stopped  said 
engine,  and  avoided  the  injury,  without  danger  to  themselves 
or  train,  then  the  railroad  company  is  liable  for  the  want  of 
such  care  and  watchfulness,  and  the  injury  occasioned  tliereby; 
provided,  the  jury  further  believe,  from  the  evidence,  that 


KAILROADS.  405 

the  deceased  was,  at  the  time,  exercising  all  reasonable  care 
and  caution  to  avoid  the  injury.  Chi.  <&  Alton  JRd.  Co.  vs. 
Murray,  62  111.,  326. 

The  defendant's  servants  in  this  case  were  not  bound  to  use 
extraordinary  care  or  extraordinary  means  to  prevent  acci- 
dents, they  were  only  bound  to  use  what  in  that  peculiar  busi- 
ness is  ordinary  care  and  diligence,  and  the  paramount  duty  of 
the  emyjloyes  on  the  train  was  the  protection  of  the  passen- 
gers, the  pro]ierty  in  the  train  and  the  train  itself.  If  you 
believe,  from  the  evidence,  that  in  the  usual  and  ordinaj-y 
management  of  the  train  for  the  safety  of  the  passengers  and 
property,  the  eno;ineer  had  to  ]3erform  other  duties  besides 
watching  the  track  ahead,  such  as  gauging  his  steam,  watching 
his  time  table,  examining  his  machinery,  watching  for  the 
station  signals,  then  he  had  a  lawful  right  to  perform  these 
duties,  and  he  was  not  bound  to  neglect  them  in  order  to  watch 
the  track  ahead  while  performing  his  duties.  And  if  the  jury 
find,  from  the  evidence,  that  the  engineer  in  charge  of  the 
engine  was  attending  to  any  or  all  of  these  duties  at  the  time 
of  the  accident,  and  that  for  this  reason  the  stock  was  not  dis- 
covered in  time  to  save  them  by  using  ordinary  means  to  stop 
the  train,  then  the  defendant  is  not  liable.  lid.  Co.  vs.  Smith, 
22  Ohio  St.,  227. 

§  30.  Company  Must  not  Suifer  Tall  Weeds  or  Brash  to  Obstruct 
the  View  of  the  Track. — The  court  instructs  the  jury,  that  it  is 
negligence  in  a  railroad  company  to  permit  or  suffer  brush  or 
tall  weeds  to  grow  upon  its  right  of  way,  so  as  materially  to 
obstruct  the  view  of  the  track  or  approaching  trains  by 
persons  about  to  cross  the  track;  and,  in  this  case,  if  the  jury 
believe,  from  the  evidence,  that  the  defendant  permitted  and 
suffered  brush  and  tall  weeds  to  grow  upon  its  right  of  way, 
so  as  to  obstruct  materially  the  view  of  the  track  and  of 
approaching  trains  by  persons  about  to  cross  the  railroad  on 
the  crossing  in  cpiestion,  and  that  but  for  such  obstruction  the 
injury  in  question  would  not  have  happened,  then  the  com- 
pany is  liable,  in  this  case,  unless  the  jury  further  believe,  from 
the  evidence,  that  the  plaintiff's  own  negligence  directly  con- 
tributed to  the  injury.  Wharton  on  Neg.,  §  386;  O^JIm'avs. 
Radaoii  River  Ed.  Co.,  38  N.  Y.,  445;  Artz  vs.  C,  etc.,  lid. 


406  NEGLIGENCE. 

Co.,  34  la.,  153;  hid.,  etc.,  Ed.  Co.  vs.  Keeley,  23  Ind.,  133; 
Tahor  vs.  3fo.  V.  Rd.  Co.,  46  Mo.,  353;  /.  cfi  St.  Louis  vs. 
Siniih,  78  111.,  112. 

If  tlie  jury  believe,  from  the  evidence,  tliat  the  plaintiff  was 
free  from  negligence,  on  his  j^art,  in  attempting  to  cross  the 
track  of  the  railroad,  and  that  the  defendant's  servants  in 
charge  of  the  engine  were  guilty  of  negligence,  either  in  run- 
ning over  the  crossing  in  question  at  a  greater  speed  than 
was  usual,  and  than  was  reasonably  safe  to  persons  about  to 
cross  the  tiack,  or  in  not  ringing  the  bell  or  sounding  the 
whistle  continuously  for  the  distance  of  {eighty)  rods  before 
reaching  the  crossing,  and  that  by  reason  of  such  negligence 
the  plaintiff  or  his  property  was  injured,  and  the  plaintiff 
thereby  damaged,  then  the  jury  should  hnd  the  issues  for  the 
plaintiff. 

§  31.  Care  Required  of  Traveler^!. — The  jury  are  instructed, 
as  a  matter  of  law,  that  both  tlie  plaintiff  {or  the  deceased) 
and  the  railway  company  had  an  equal  right  to  cross  the 
street  at  the  p<jin'  where  the  accident  happened,  and  that  the 
law  imposes  upon  both  parties  the  duty  of  using  reasonable 
and  prudent  precautions  to  avoid  accident  and  danger;  and, 
while  it  was  incumbent  upon  the  railway  company,  in  running 
its  train  on  the  occasion  referi'ed  to,  to  give  the  required 
signal  by  ringing  the  bell  or  sounding  the  whistle  {eighty)  rods  • 
before  i caching  the  crossing,  it  was  also  the  duty  of  the  plaint- 
iff' (or  deceased)  to  look  out  for  the  approach  of  the  train,  and 
to  observe  all  reasonable  precautions  before  attempting  to 
cross  the  track. 

Every  person  is  bound  to  know  that  a  railroad  crossing  is  a 
dangerous  place,  and  he  is  guilty  of  neglect  unless  he  ap- 
proaches it  as  if  it  were  dangerous.  And  if  the  jury  believe, 
from  the  evidence,  that  the  plaintiff  {or  the  deceased),  as 
he  approached  the  railroad  track,  did  not  look  or  listen  to  as- 
certain if  a  train  was  coming,  and  observe  all  reasonable  pre- 
cautions to  avoid  danger,  but,  on  the  contrary,  drove  directly 
onto  the  track,  where  the  accident  happened,  without  taking 
any  steps  to  ascertain  if  a  train  was  apinoaching,  then  he  was 
guilty  of  such  negligence  as  precludes  a  recovery  in  this  case,^ 
unless  the  jury  believe,  from  the  evidence,  tliat  the  servants 


EAILEOADS.  407 

of  the  railway  company,  upon  such  occasion,  were  guilty  of 
gross  negligence,  as  explained  in  these  instructions.  Lake 
Shore  Ed.  Co.  vs.  Miller,  25  Mich.,  274;  C.  <&  Jf.  W.  Rd.  Go. 
vs.  Batch,  79  111.,  137;  Davis  vs.  N.  T.  Cent.,  47  K  Y.,  400; 
Allyn  vs.  Railroad,  105  Mass.,  77;  Bellefontaine  Rd.  Co.  vs. 
Hunter,  33  lud.,  353;  Peiin.  Rd.  Co.  vs.  Beale,  73  Pcnn.  St., 
504. 

A  person  about  to  cross  the  track  of  a  railroad,  upon  a  pub- 
lic highway,  is  bound  to  exercise  all  reasonable  care  and  cau- 
tion to  avoid  inj\uy  upon  the  crossing.  In  his  a]i]iroacli  to 
the  crossing,  it  is  incumbent  upon  him  to  exorcise  care  and 
caution  by  looking  and  listening  for  any  tiain  that  may  be  a]> 
proaching,  so  as  to  avoid  a  collision;  otherwise  he  cannot  re- 
cover for  an  injury  so  received,  unless  it  appears  that  the 
injury  was  inflicted  willfully  or  wantonly  [or  through  gross  neg- 
ligence). Ilearne  vs.  Southern,  etc.,  Rd.  Co.,  50  Cal.,  482; 
Toledo,  etc.,  Rd.  Co.  vs.  Shuckrnan,  50  Ind.,  42;  Haines  vs. 
m.  Cent.  Rd.  Co.,  41  Iowa,  227. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  it  is 
the  duty  of  a  person  approaching  the  crossing  of  a  railroad, 
with  a  wagon  and  team,  along  a  highway,  to  listen  and  to  look 
both  ways  along  the  railroad  before  going  ujion  it.  If,  from 
a  rise  in  the  ground  or  other  obstructions,  or  if,  by  reason  of 
a  defect  of  his  sense  of  sight  or  hearing,  he  cannot  determine 
with  certainty  whether  or  not  a  train  of  cars  is  approaching 
without  stopping,  and,  if  necessary,  going  in  advance  of  his 
team  to  examine,  it  is  his  duty  to  do  so.  If,  in  such  case,  he 
goes  upon  the  track  without  taking  such  ]u-ecaution,  he  does 
so  at  his  own  peril,  and  cannot  recover,  if  injury  results.  C, 
B.  &  Q.  Rd.  Oo.  vs.  Lee,  87  111.,  454;  Dolan  vs.  Delaware, 
71  N.  Y.  285. 

§  32.     Care  Mast  be  Proportioned  to  Known  Danger. — If  the 

jury  believe,  from  the  evidence,  that  where  the  ]mblic  high- 
way crossed  the  railroad  track,  and  where  the  accident  hap- 
pened, was  a  difficult  place  to  cross  with  a  loaded  team,  and 
that  the  said  A.  B.  was  acquainted  with  the  ])lace  and  the  dif- 
ficult}^ of  crossing,  then  he  was  bound  to  use  reasonable  care 
and  caution  to  avoid  injury,  and  that  the  degree  of  care  and 
caution  reqinrcd  of  him  was  such  as  would  have  been  reason- 


408  NEGLIGENCE. 

ably   proportionate   to   the   known  difficulty  and  danger  in 
crossing. 

§  33.  Contributory  Negligence — Gross  Negligence. — The  jury 
are  instructed,  that  if"  they  believe,  from  the  evidence,  that 
the  said  A.  B.  was  guilty  of  negh'gence,  which  materially  con- 
tributed to  the  accident,  by  driving  upon  tiie  track  of  the  rail- 
road without  lirst  looking  and  listening  to  see  if  a  train  was 
approaching,  then  the  defendant  cannot  be  found  guilty  in 
this  case,  unless  the  jury  believe,  from  the  evidence,  that  the 
defendant's  servants  were  guilty  of  gross  negligence,  which 
caused  the  accident.  And  the  jury  are  instructed,  that  in  this 
connection  gross  negligence  means  a  willful  act  or  ouiission,  or 
one  which  shows  a  reckless  disregard  of  life  or  ])roperty. 

The  court  further  instructs  the  jury,  that  while  a  traveler 
on  the  highway  is  not  required  to  leave  his  wagon,  or  to  use 
any  other  unusual  means  to  discover  an  approaching  train,  he 
cannot  voluntarily  close  his  eyes  to  danger,  or  needlessly  ex- 
pose himself  to  it,  and  then  claim  compensation  for  an  injury 
thus  received.  And  if  the  jury  believe,  from  the  evidence, 
that  the  said  A.  B.,  if  he  had  looked,  could  have  seen  the 
approaching  train,  for  a  distance  of,  etc.,  before  the  train 
reached  the  crossing,  and  that  either  he  did  not  look,  or  else 
paid  no  attention  to  the  train,  but  went  upon  the  track  while 
the  train  was  approaching,  and  so  near  to  the  crossing  as  to 
cause  the  accident,  then  he  was  guilty  of  gross  negligence,  and 
cannot  recover  in  this  suit.  liockford,  etc.,  Rd.  Co.  vs.  Byam^ 
80  Ilk,  528;  Benton  vs.  Cent.  Ed.  Co.,^^  la.,  192;  Cleveland, 
etc.,  Rd.  Co.  vs.  Elliott,  28  Ohio  St.,  3i0  ;  Fletcher  vs.  Atlan- 
tic^ etc.,  Rd.  Co.,  64  Mo.,  484. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant's 
employes  sounded  the  whistle,  or  rung  the  bell  of  the  engine 
for  {eighttj)  rods  before  reaching  tlie  crossing,  and  used  all  sucli 
ordinary  care  and  diligence  as  is  generally  used  by  careful  and 
skillful  engineers,  brakemen,  and  emploj-es  of  railroad  compa- 
nies under  like  circumstances,  and  if  the  jury  further  believe, 
from  the  evidence,  that  the  said  A.  B.  was  sitting  on  his 
wagon,  with  his  back  turned  in  the  direction  of  the  approach- 
ing train,  so  as  to  jirevent  his  seeing  it,  and  that  he  could  have 
seen  the  train  in  time  to  avoid  the  injury  if  he  had  turned  and 


EAILEOADS.  409 

looked  in  the  direction  of  the  approaching  train,  then  the  jury 
must  find  the  defendant  not  guilty. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  it  was 
the  duty  of  the  deceased,  in  approaching  the  raih-oad  crossing, 
to  have  exercised  that  degree  of  care  and  prudence  for  his 
personal  safety,  which  an  ordinarily  prudent  man  would  do, 
and  if  the  jury  believe,  from  the  evidence,  that  the  deceased, 
by  the  exercise  of  that  degree  of  care  and  prudence,  could 
have  discovered  theapproaciiing  train  in  time  to  stop  his  team 
and  avoid  the  collision,  then  the  plaintilf  cannot  recover,  un- 
less the  jui-y  find,  from  the  evidence,  that  the  Injury  was 
caused  by  the  willful  conduct  of  the  person  in  charge  of  the 
engine,  or  by  conduct  so  utterly  reckless  as  to  show  an  utter 
disregard  for  the  life  of  the  deceased.  6'.,  B.  cL-  Q.  Rd.  Co. 
,  vs.  Lee,  68  111.,  576. 

The  defendant's  servants  in  charge  of  the  engine  which 
struck  the  deceased  had  a  right  to  assume  that  he  was  rational, 
and  would  exercise  reasonable  care  and  caution  to  keejj  him- 
self out  of  danger  until  they  saw  something  in  his  conduct 
which  jvas  inconsistent  with  such  assumption.  And  if  the 
jury  believe,  from  the  evidence,  that  when  the  persons  in 
charge  of  the  engine  first  came  in  sight  of  the  deceased,  ho 
was  so  far  removed  from  the  track  as  to  be  free  from  danger 
of  collision,  then  they  had  a  right  to  assume  that  he  would  re- 
main at  such  safe  distance,  unless  there  was  something  in  the 
circumstances  calculated  to  rebut  such  presumption,  or  until 
he  manifested  a  purpose  to  place  himself  in  a  dnngerous  posi- 
tion.    Chicago,  B.  I.  <&  P.  Ed.  Go.  vs.  Austin,  69  111.,  426. 

§  34.  Negligence  per  se  in  Traveler. — The  court  instructs  the 
jury,  as  a  matter  of  law,  that  it  is  not  the  exercise  of  ordinary 
care  and  prudence  for  a  person  to  drive  with  a  team  directly 
onto  a  railroad  crossing,  without  making  an  effort,  by  stop- 
ping or  listening,  or  otherwise,  to  ascertain  whether  a  train  is 
approaching,  or  whether  it  is  safe  to  drive  onto  the  track 
with  his  team. 

The  jury  are  instructed,  that  ordinary  care  and  caution  is 
that  degree  of  care  and  caution  which  persons  of  common 
pn-udence  are  accustomed  to  exercise  for  their  own  safety, 
and  in  this  case  the  driver  was  bound  to  use  that  de^jree  of  care 


410  NEGLIGENCE. 

and  caution  to  avoid  injury;  and  if  the  jury  believe,  from  tlie 
evidence,  that  by  the  exercise  of  that  degree  of  care  and  cau- 
tion on  his  part,  the  injury  complained  of  might  have  been 
avoided,  then  the  plaiutifl"  cannot  recover  in  this  suit. 

If  the  jury  believe,  from  the  evidence,  that  the  driver  of 
the  wagon,  before  he  drove  onto  the  crossing,  knew  that  he 
was  approaching  and  about  to  cross  the  railroad  track  at  the 
time  in  question,  and  that  by  looking  and  listening  he  might 
have  discovered  the  train  in  time  to  have  avoided  the  injury, 
and  he  did  not  make  any  effort  by  looking,  listening  or  other- 
wise, to  ascertain  whether  a  train  was  ap])roaching,  but  drove 
dii'ectly  onto  the  track  as  he  approached  it,  then  this  was 
such  negligence  on  his  ynvt  as  will  ])revent  a  recovery  by  the 
plaintiff  in  this  suit.  Jifl.  Co.  vs.  ElUott,  23  Ohio,  3i0 ;  Rd. 
Co.  vs.  Crawford.,  24  Ohio  St.,  631;  Peiin  Co.  vs.  Hathgab^ 
32  Ohio  St.,  66. 

§  35.  Coiifliict  in  Pr?spn?e  of  Surllen  Danger. — The  jury  are 
instructed  that  in  the  face  of  sudden,  unexpected  and  deadly 
danger,  a  person  is  not  expected  or  required  to  be  cool  and 
collected,  and  to  act  with  perfect  prudence  and  deliberate 
judgment;  in  such  case  he  is  only  required  to  use  such  degree 
of  prudence  and  judgment  as  ordinarily  careful  and  prudent 
men  would  be  likely  to  exercise  under  the  same  or  similar 
circumstance.  And  if  the  jury  believe,  from  the  evidence, 
that  the  deceased  used  ordinary  care  and  prudence  to  avoid 
accident  in  ap})roaching  the  crossing,  and  that  when  he  be- 
came aware  of  his  danger,  he  used  such  care  as  men  of  ordi- 
nary prudence  under  like  circumstances  would  be  likely  to  use 
to  avoid  or  escape  injury,  then  his  negligence  did  not  contrib- 
ute to  the  injury.  Ind.  c&  St.  L.  Rd.  Co.  vs.  Stout.,  53  Ind., 
113;  C.  &  N.  k  R<j.  Co.  vs.  Miller.  16  Midi.,  532. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  of 
the  accident  in  question,  the  plaintiff  was  seated  in  his  wagon 
near  the  track  of  defendant's  road  (or  as  the  case  may  be)  and 
that  the  servants  or  agents  of  defendant  were  guilty  of  negli- 
gence in,  etc.,  and  that  the  plaintiff  was  thereby  put  in  great 
danger  of  life  or  limb,  or  liad  reasonable  ground  to  believe, 
and  did  believe,  that  he  was  thereby  put  in  such  danger,  and 
that  it  was  necessary  to  leap  from  his  wagon  in  order  to  avoid 


EAILKOADS.  411 

the  threatened  danger,  and  that  in  consequence  of  such  belief 
he  did  jump  from  his  wagon,  and  thereby  caused  the  injury 
complained  of,  when,  if  he  had  remained  in  the  wagon  ho 
would  have  sustained  no  injury,  this  alone  would  not  dej)rive 
him  of  the  right  to  recover  in  this  suit,  jn-ovided  you  iind 
from  the  evidence,  under  tlie  instruction  of  the  court,  that  the 
defendant  is  otherwise  guilty  and  the  i)laintiif  otherwise  en- 
titled to  recover,  Djcr  vs.  Erie  lid.  Co..  71  N.  Y.,  228 ; 
JioU  vs.  JV.  Cent.  Rd.  Co.,  16  Ilun,  496;  Schultz  vs.  Chiavjo., 
etc.,  Rd.  Co.,  44  Wis.,  638. 

§   36.     Damage  Must  be  the  Result  of  the  Negligence  Chargo;!. — 

Tlie  court  instructs  the  jury,  that  the  neglect  to  sound  the 
whistle  or  ring  the  bell  of  an  engine  is  not  of  itself  such  negli- 
gence as  will  justify  a  recovery  for  damages,  to  person  or  pro]-)- 
erty,  injured  upon  the  track.  To  entitle  the  plaintiff  to  re- 
cover for  such  injury,  it  must  appear,  from  the  evidence,  that 
the  injury  was  the  result  of  such  omission  to  ring  the  bell  or 
sound  the  whistle.  Ind.  <&  St.  L.  Rd.  Co.  vs.  Blackman,  63 
111.,  117. 

The  jury  are  instructed,  that  it  is  not  enough  to  create  a 
liability  for  injuries  caused  by  a  railroad  train,  to  prove  the  bell 
was  not  rung,  or  the  whistle  sounded.  The  jurj'  must  fui-tlier 
believe,  from  the  facts  and  circumstances  proved,  that  the  ac- 
cident was  caused  by  reason  of  such  neglect. 

The  jury  are  insti-ucted,  that  although  they  may  believe, 
from  the  evidence,  tliat  the  {<:oio)  in  question  was  killed  by  the 
defendant's  locomotive,  and  that  there  was  a  failure  to  ring 
the  bell  or  blow  the  whistle,  for  a  distance  of  {ei(jJit;/)Yo([>  be- 
fore reaching  the  crossing,  still,  if  the  jury  fiii'tlier  believe, 
from  the  evidence,  that  there  was  no  c<,»nnection  bctu-ecn  the 
failure  to  ring  the  bell,  or  blow  the  whistle,  and  the  killing  of 
the  {goio),  then  the  jury  should  find  the  defendant  not  guilty, 
unless  they  find,  from  the  evidence,  that  the  injury  was  occa- 
sioned by  some  negligence  or  misconduct,  other  than  the  fail- 
ure to  ring  the  bell  or  sound  the  whistle. 

The  jury  are  instructed,  tliat  whether  the  failure  to  ring 
the  bell,  or  sound  the  whistle,  on  approaching  the  highway, 
by  the  train  in  question,  was,  or  was  not,  the  cause  of  the  in- 
jury complained  of,  is  a  question  of  fact,  to  bo  determined  by 


412  KEGLIGENCE. 

the  jury,  from  a  consideration  of  all  the  evidence  in  the  case. 
Illinois  Cent.  Rd.  Co.  vs.  Benton^  69  111.,  174. 

§  37.  Injury  to  Stock  at  Crossing. — The  jury  are  instructed, 
as  a  matter  of  law,  that  it  would  be  gross  negligence,  in  j^ersons 
in  charge  of  an  engine,  not  to  see  and  observe  stock  if  they  are 
on  or  near  a  railroad  crossing,  at  least  {^forty)  rods  before 
reaching  that  point,  if  there  was  nothing  in  the  way  to  prevent 
them  seeing,  if  they  had  looked. 

And  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
the  plaintiff's  horse  was  injured  by  the  defendant's  engine, 
while  the  horse  was  on  a  highway  crossing,  and  that  the  per- 
sons in  charge  of  the  engine  could  have  seen  the  horse  on  the 
track,  or  in  dangerous  proximity  to  it,  in  season  to  have  stopped 
the  cars  and  prevented  the  injury,  and  did  not  see  him,  or 
feeing  him,  in  season  to  have  avoided  the  injury,  did  not  do  so, 
this  would  be  gross  negligence,  for  which  the  company  would 
be  liable,  unless  the  jury  believe,  from  the  evidence,  that  the 
])laintitf  was  himself  guilty  of  negligence,  which  contributed 
directly  and  materially  to  the  injury.  C.  B.  &  Q.  Rd.  Co.  vs. 
Cauffman,  38  111.,  424;  Wharton  on  [N'eg.,  §  397;  Parker  y&. 
Railroad,  34  la.,  399. 

The  court  instructs  the  jury,  that  in  a  suit  against  a  railroad 
company  for  injuries  inflicted  at  a  highway  crossing,  if  it  ap- 
pears, from  the  evidence,  that  no  bell  was  rittig,  or  whistle 
sounded,  for  the  distance  of  {eighty)  rods  before  reaching  the 
crossing,  and  also  that  the  com[mny  was  guilty  of  {other  neg- 
ligence), which  may  have  caused  the  injury;  and  if  it  is  doubt- 
ful whether  the  injury  was  caused  by  the  failure  to  ring  the 
bell  or  sound  the  whistle,  or  by  {such  other  negligence),  or  by 
both  combined,  then  the  company  will  be  liable  for  the  injury; 
provided,  the  jury  believe,  from  the  evidence,  that  the  injury 
resulted  from  either  or  both  of  said  causes,  and  that  the  plaint- 
iff himself  was  free  from  fault  or  negligence. 

§  38.  Neglect  to  Ring  the  Bell,  etc.,  Prima  Facie  Evidence  of 
Negligence. — The  jury  are  instructed,  that  in  a  suit  against  a 
railroad  company  for  killing  stock  at  a  road  crossing,  an  omis- 
sion, on  the  part  of  the  comjiany,  to  ring  a  bell  or  sound  a 
whistle  continuously  for  a  distance  of  at  least  {eighty)  rods 


RAILROADS.  413 

before  reacliing  the  crossing,  if  proved,  constitutes  a  prima 
facie  case  of  negligence  against  tliecouipanj.  Illinois  Gent. 
Rd.   Co.   vs.  Gillis,  68  111.,  317. 

§  39.  Burden  of  Proof  as  to  Rina;in?  Bell. — The  court  in- 
structs the  jury,  that  it  is  not  for  the  defendant  to  prove  that 
tlie  bell  was  rung  and  kept  ringing  for  eighty  rods  before  the 
engine  reached  the  highway  crossing.  It  is  incumbent  upon 
the  plaintiff  to  prove,  by  a  preponderance  of  the  evidence,  that 
said  bell  was  not  rung  and  kept  ringing  for  eiglity  rods  before 
the  engine  reached  said  crossing.  P.^  D.  &  E.  Ry.  Co.  vs. 
Foltz,  13  III.  App.,  53.5. 

The  court  instructs  the  jury  that  it  is  not  for  the  defendant  to 
show  that  its  engineer  and  fireman  used  due  care  and  diligence 
to  avoid  injuring  the  plaintiff's  mare.  It  is  incumbent  upon 
the  plaintiff  to  prove  by  a  ]-»re;x)n'loranco  of  evidence  in  the 
case,  that  said  engineer  and  fireman  so  negligently  and  care- 
lessly managed  the  ti'ain  and  engine,  that  said  engine  ran  over 
said  mare,  and  thereby  killed  her, 

§  40.  Must  Exercise  Reasonable  Care  and  AVatchfulness  to  Avoid 
Ii\juring  Stock. — If  the  jury  believe,  from  the  evidence,  that 
the  {cmo)  in  question  was  killed  by  a  passing  train  of  cars  on 
the  defendant's  road,  and  that  before  she  was  killed  she  was 
in  plain  view  of  the  engine  driver  and  fireman  in  charge  of 
the  engine,  and  that  she  was  seen,  or  could  have  been  seen,  by 
them  by  the  use  of  ordinary  care  and  attention,  in  time  to  have 
slackened  the  speed  of  the  train  and  avoidad  the  accident,  and 
that  no  efforts  were  made  by  them  in  that  direction,  this  was 
such  negligence  as  renders  the  company  liable;  provided,  the 
jury  find,  from  the  evidence,  that  plaintiff's  own  negligence 
did  not  contribute  to  the  injury. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  a  rail- 
road company  is  liable  for  stock  killed  upon  its  track,  where 
such  killing  results  from  the  want  of  ordinary  care  and  caution 
in  the  running  of  its  trains,  and  the  plaintiff's  own  negligence 
does  not  materially  contribute  to  the  injury.  To  render  the 
company  liable  in  such  cases,  it  is  not  necessary  that  tlie  kill- 
ing should  be  wanton'y  or  willfully  done  by  its  servants  or  em- 
ployes. Rock  ford,  R.  L  &  St.  L.  Rd.  Co.  vs.  Rafferty,  73 
111.,  58. 


414:  NEGLIGENCE. 

The  court  instructs  the  jury,  thcat  if  they  believe,  from  the 
evidence,  tliat  the  persons  in  charge  of  the  engine  and  train 
of  cars  in  question,  by  ordinary  care,  skill  and  prudence,  could 
have  seen  the  animals,  or  that  they  did  see  them  in  season,  so 
that  by  the  use  of  ordinary  care  and  skill,  and  without  danger 
to  the  train,  they  might  have  stopped  the  train  before  striking 
the  animals,  and  thus  avoided  the  injury,  and  did  not  do  so, 
this  would  be  such  negligence  as  would  render  the  defendant 
liable  for  the  injury  and  damage  sustained  by  the  plaintiff; 
provided,  the  jury  believe,  from  the  evidence,  that  the  ani- 
mals were  injured,  and  that  plaintiff  thereby  sustained  damage, 
in  manner  and  form  as  charged  in  the  declaration;  and  also 
that  plaintiff's  own  fault  or  negligence  did  not  contribute  to 
the  injury.      T.,  P.  &    W.  Ed.  Co.  vs.  Bray,  57  111.,  514. 

§  41.  Speed  through  Cities  and  Villa.ges — Limited  by  Ordi- 
nance.— The  jury  are  instructed,  that  when  a  railroad  company 
runs  its  trains  through  a  city,  incorporated  town  or  village,  at 
a  greater  rate  of  speed  than  is  permitted  by  the  ordinance  of 
the  city,  town  or  village,  and  stock  is  killed  by  such  train  while 
so  running,  the  killing  will  be  presumed  to  have  been  done 
through  the  negligence  of  the  company.  T.,  P.  &  W.  R.  R. 
Co.  vs.  Deacon,  63  III.,  91;  Monahan  vs.  JxeohuTc,  etc.,  Rd.  Co., 
44  la.,  523;  Bruslerg  vs.  Milwaukee,  etc.,  Rd.  Co.,  50  Wis., 
231. 

The  court  instructs  the  jury,  that  it  is  gross  negligence  on 
the  part  of  a  railroad  company  to  run  its  trains  through  a  city, 
incorporated  town  or  village,  at  a  rate  of  speed  prohibited  by 
law;  and  if  a  railroad  company  does  so  run  its  trains,  and 
thereby  causes  the  death  of  a  person,  who  is  himself  in  the 
exercise  of  reasonable  care  and  caution  to  avoid  injury,  the 
company  will  be  liable.  C.  cfc  A.  Rd.  Co.  vs.  Becker,  84  111., 
483. 

It  is  the  duty  of  a  railroad  company,  whose  road  runs 
through  a  city  or  village,  to  run  its  trains  while  in  the  city  or 
village  at  such  a  rate  of  speed  as  to  have  them  under  control, 
60  as  to  be  able  to  avoid  injury  to  ])ei'sons  or  property,  though 
there  is  no  ordinance  of  such  city  or  village  on  the  subject; 
and  if  it  fail  to  do  so,  it  will  be  guilty  of  negligence.  Chi.  & 
Alton  Rd.  Co.  vs.  Engle;^4  III.,  397. 

The  court  instructs  the  jury,  that,  by  the  laws  of  this  state, 


EAILKOADS.  415 

if  a  railroad  corporation,  by  its  agents  or  servants,  runs  an 
engine,  or  train  of  cars,  in  or  through  the  limits  of  any  incor- 
porated city,  town  or  village,  at  a  greater  rate  of  speed  than  is 
permitted  by  the  ordinance  of  such  city,  town  or  village,  then 
the  corporation  is  liable  for  all  damage  done  to  the  person  or 
property  of  any  person  injured  by  such  engineer  train  of  cars. 

§  42.  Speed,  when  not  Limited  by  Ordinance. — If  the  jury 
believe,  from  the  evidence,  that  the  {colt),  when  injured,  was 
straying  upon  the  depot  grounds  and  track  of  the  defendant, 
then  it  is  not  material  at  what  rate  of  speed  the  cars  were 
running,  if  within  reasonable  limits,  and  the  defendant's  serv- 
ants were  not  guilty  of  negligence  in  any  other  respect.  The 
defendants  are  not  bound  to  run  their  cars  with  reference  to 
the  safety  of  stock  straying  upon  their  track.  It  iiad  a  right 
to  run  its  trains  at  any  rate  of  speed  consistent  with  tlie  safety 
of  persons  and  property  rightfully  on  its  cars,  or  right  of 
way. 

§  43.  Rules  as  to  Children — Contributory  Negligence. — That  a 
party  seeking  to  recover  damages  caused  by  negligence  or 
misconduct  of  another,  if  old  enough  to  exercise  reasonable 
care  and  caution,  must  show,  by  a  preponderance  of  evidence, 
that  his  own  negh'gence  or  misconduct  did  not  concur  with 
the  negligence  of  the  party  charged  in  producing  the  injury 
complained  of;  and  if  the  party  injured  is  not  old  enough  to 
exercise  reasonable  care  and  caution,  then  it  must  appear, 
from  the  evidence,  that  the  negligence  or  misconduct  of  the 
persons  whose  care  and  circumspection,  under  the  circum- 
stances, should  have  been  exeicised,  did  not  concur  with  the 
negligence  of  the  party  charged,  in  producing  the  injury  com- 
plained of;  or  else,  in  neither  case,  would  the  comjilaining 
party  be  entitled  to  recover,  unless  it  further  appears,  from 
the  evidence,  that  such  concuriing  negligence  was  slight,  and 
the  negligence  of  the  party  charged  was  gross,  as  explained  in 
these  instructions.  City  of  Chicago  vs.  Major,  18  111.  349; 
StiUson  vs.  E;  etc.,  Rd.  Co.,  67  Mo.,  671. 

Note. — Upon  the  question,  whether  the  contriltutory  negligrence  of  a 
parent  or  guardian  can  be  imputed  to  a  child  of  tender  years,  so  as  to  pre- 
vent a  recovery  for  injuries  inflicted  upon  the  child,  the  authorities  are  not 
agreed.     See  Wharton  on  Neg.,  §  310,  aud  cases  there  referred  to. 


416  NEGLIGENCE. 

If  the  jury  believe,  from  the  evidence,  that  the  deceased, 
at  the  time  of  the  injury,  from  his  age,  required  the  care  and 
oversight  of  some  older  person,  in  order  to  insure  his  personal 
safety,  and,  further,  that  at  the  time  of  the  injury  reasonable 
care  and  oversight  were  not  'exercised  by  the  person  having 
the  charge  and  control  of  the  child,  and  that  such  want  of 
reasonable  care  contributed  directly  to  the  injury,  then  the 
])laintiff  caimot  recover,  unless  the  jury  further  believe,  from 
the  evidence,  that  such  contributory  negligence  was  but 
slight,  and  the  negligence  of  the  defendant  was  gross,  as  ex- 
])lained  in  these  instructions.  J.  M.  c&  I.  Rd.  Go.  vs.  Boioen, 
40  Ind.,  545. 

As  pertinent  to  the  question  of  reasonable  care,  regarding 
the  child,  the  jury  may  consider  whether  it  appears,  from  the 
evidence,  that  he  was  of  such  tender  years  as  to  need,  for  his 
personal  safety,  the  care  and  oversight  of  some  older  person ; 
and,  if  the  jury  so  Und,  from  the  evidence,  then  they  should 
inquire  whether  it  appears,  from  the  evidence,  that  at  the 
time  of  the  accident  some  older  person  was  exercising  such 
care  and  oversight  over  the  person  of  the  child,  as  ordinarily 
judicious  and  careful  persons,  having  the  care  of  children  of 
like  age,  usually  exercise  over  them.  Eocmsville,  etc.,  Rd. 
Co.  vs.   Wolf,  59  Ind.,  89. 

The  jury  are  instructed,  that  the  rule  as  to  contributive 
negligence  of  a  child,  is  that  it  is  required  to  exercise  only 
that  degree  of  care  which  a  person  of  that  age  would  natu- 
rally and  ordinarily  use,  iji  the  same  situation  and  under  the 
same  circumstances.  St.  Louis.,  etc.,  Rd.  Co..,  vs.  Yalirms,  56 
Ind.,  511;  McMillan  vs.  Burlington.,  etc.,  Rd.  Co..,  46  la., 
231;  Cleveland,  etc.,  Rd.  Co.  vs.  Manson,  31  Ohio  St.,  451; 
Chicago,  etc.,  Rd.  Co.  vs.  Murray,  71  111.,  601;  Baltimore 
etc.,  Rd.  Co.  vs.  McDonnell,  43  Md.,  534;  Gov.  St.  Rd.  Co. 
vs.  Jlanlon,  53  Ala.,  70;  Isahel  vs.  Hannibal,  etc.,  Rd.  Co.,  60 
Mo.,  475. 

Where  the  parents  of  an  infant  or  a  child,  too  young  to  be 
allowed  on  the  public  streets  alone,  are  unable  to  give  him  their 
personal  care,  but  do  intrust  liim  to  the  care  and  supervision 
of  a  suitable  person,  the  negligence  of  the  latter  cannot  be  im- 
puted to  the  parents  nor  to  the  child.  Waltei's  vs.  C,  R.  I. 
&  P.  Rd.  Co.,  41  la.,  71. 


KAILEOADS.  417 

The  jury  are  instructed,  that  in  determining  the  relative 
degrees  of  care,  or  want  of  care,  inanifested  by  the  parties,  at 
the  time  of  the  injury,  tlie  age  and  discretion  of  the  party  in. 
jured  are  proper  subjects  of  inquiry  for  the  jury.  The  law- 
does  not  require  that  a  child  shall  exercise  the  same  degree  of 
care  and  caution  as  a  person  of  mature  years,  but  only  such 
care  and  cautiun  as  a  person  of  his  age  and  discretion  would 
naturally  and  ordinarily  use.  Kerr  vs.  Forgue^  54  111.,  482; 
Casey  vs.  N.  T.  C.  R.  R.  Co.,  Abb.  (N.  T.)  K  Cas.,  104. 

If  the  jury  believe,  from  the  evidence,  that  the  deceased,  at 
the  time  of  his  death,  was  between  {Jive  and  six)  years  of  age, 
and  that  he  went  upon  the  railroad  track  of  the  defendant, 
and  that  the  engineer  in  charge  of  the  engine  in  question, 
through  the  want  of  ordinary  and  reasonable  care,  skill  or  at- 
tention, ran  the  engine  against  the  deceased  and  killed  him, 
in  manner  and  form  as  charged  in  the  plaintiff's  declaration, 
then  the  plaintiff  has  a  right  to  recover  in  this  case;  provided, 
the  jury  believe,  from  the  evidence,  that  the  said  deceased, 
by  reason  of  his  tender  years,  was  incapable  of  exercising  any 
more  care  or  discretion  than  he  did  manifest  at  the  time  of  the 
accident. 

§  44.  Negligence  as  Regards  Children. — The  jury  are  in- 
structed, that  legal  negligence  is  the  omission  of  such  care  or 
caution,  as  persons  of  ordinary  prudence  usually  exercise  or 
deem  sufficient,  under  the  circumstances  of  the  case.  And  in 
this  case,  if  the  jury  believe,  from  the  evidence,  that  the  child 
in  question  was  injured  through  the  negligence  of  the  defend- 
ant, as  charged  in  the  declaration,  then  it  will  be  for  the  jury 
to  determine,  from  the  evidence,  whether  the  parents  of  the 
child  were  in  the  exercise  of  ordinary  care  and  prudence,  for 
the  safety  of  the  child,  regard  being  had  to  his  age  and  in- 
telligence and  all  the  surrounding  circumstances.  Johnson's 
Adm'r,  etc.,  vs.  Chicago  &  iT.  W.   Rway  Co.,  49  Wis.,  529. 

§  45.     Master  and  Servant — Master  Liable  to  Servant,  When. — 

The  jury  are  instructed,  that  a  master  or  employer  is  bound  to 
use  reasonable  care,  skill  and  judgment  to  furnish  suitable 
machinery  and  implements,  properly  constructed,  and  ordi- 
narily skillful  and  trustworthy  agents  or  workmen;  and  if  the 

27 


418  NEGLIGENCE. 

employer  does  not  nse  siicli  care,  skill  and  judgment,  and  in- 
jury results  therefrom  to  an  euiploye,  the  employer  will  be 
liable  for  such  injury. 

"While  a  master  is  not  an  insurer  that  the  servants  he  em- 
ploys are  skillful  and  prudent,  or  that  the  workmanship  or 
materials  employed  in  his  business  are  absolutely  proper  or 
suitable,  yet  he  is  bound  to  use  all  reasonable  care  and  skill  in 
their  selection  and  construction,  so  far  as  regards  the  safety  of 
the  persons  in  his  employ.  Shearm.  &  Red.  on  Is'eg.,  §  89-92; 
JVoyes  vs.  Smith,  28  Yt.,  59;  Buzzell  vs.  Laco'iiia,  etc.,  Co.,  48 
Me.,  113;  McGatrick  vs.  ^Yason,  4  Ohio  St.,  566;  Lewis  vs. 
;^i!;.  Louis,  etc.,  Rd.  Co.,  59  Mo.,  496;  Baxter  vs.  Roberts,  44 
Cal.,  187;  Acl'erson  vs.  Dennison,  117  Mass.,  407;  Strahlen- 
dorf  \s.  Rosenthal,  30  Wis.,  674;  Richardson  vs.  Cooper,  88 
111.,  270. 

It  is  the  duty  of  a  railroad  company,  towards  those  who  are 
in  its  employ, to  have  its  road,  bridgesand  other  appurtenances, 
constructed  of  good  and  sound  material,  so  far  as  this  is  reason- 
ably practicable,  having  in  view  the  business  done  upon  the 
road.  In  their  construction  they  should  equal  those  of  the 
average  roads  doing  the  same  class  of  business,  so  far  as  relates 
to  the  safety  of  its  employes,  and  the  utmost  care  and  vigi- 
lance, which  is  reasonably  practicable,  must  be  bestowed  by 
the  company  to  keep  them  in  safe  condition. 

§  46.  Duty  Towards  Employes. —  The  jury  are  instructed, 
that  it  is  the  duty  of  a  railway  company,  as  employer,  to  use 
all  reasonable  care  and  foresight  to  provide  safe  structures, 
competent  employes,  and  all  appliances  necessary  to  the  safety 
of  the  employed,  and  to  adojjt  such  rules  and  regulations  for 
running  its  ti'ains  as  will  avoid  injury  to  its  employes,  so  far 
as  this  can  reasonably  be  done;  and  having  adopted  such  rules, 
to  use  all  reasonable  etfoi'ts  to  conform  to  them,  or  the  com- 
pany will  be  responsible  for  consequences  resulting  from  a 
departure  from  them.  (Jhicago,  etc.,  Rd.  Co.  vs.  Taylor,  69 
111.,  461. 

A  railroad  compan}'^  is  bound  to  use  all  reasonable  precau- 
tions for  the  safety  of  its  employes,  and  should  furnish  such 
machinery,  and  keep  it  in  such  condition  as  would  be  least 
likely  to  cause  injuries,  so  far  as  this  can  reasonably  be  done. 


KAILROADS.  419 

It  is  not,  however,  bound  to  tlie  exercise  of  extraordinary 
care,  and  is  required  to  furnish  such  appliances  only  as  are 
reasonably  well  calculated  to  insure  the  safety  of  its  employes. 

The  jury  are  further  instructed,  tliat  a  railroad  company,  as 
regards  its  employes,  must  use  all  ordinary  care  and  super- 
vision to  keep  its  roadway  in  a  good  and  safe  condition;  and 
if  its  agents,  charged  with  the  duty  of  inspecting  and  repair- 
ing its  track,  have  notice  of  defects  in  it,  or  by  reasonable  care 
and  diligence  could  have  learned  them,  and  omit  to  make 
repairs,  in  consequence  of^which  an  employe  is  injured,  while 
he  is  himself  using  reasonable  care  and  prudence,  then  there 
is  a  want  of  such  care  on  the  ])art  of  the  company  as  the  law 
requires,  and  the  company  would  be  liable  for  such  injuries. 
Locl:e  vs.  Sioux  City,  etc.,  Ed.  Co.,  46  la.,  109;  LaJce  Shore, 
etCy  Ed.  Co.  vs.  Fitzixitrick,  31  Ohio  St.,  479. 

A  railroad  company  is  bound  to  use  all  reasonable  care  and 
caution  to  provide  suitable  and  safe  material  and  skillful  work- 
manship in  the  construction  of  its  road  and  appurtenances,  and 
to  exercise  reasonable  care  and  watchfulness,  to  keep  the  same 
in  good  repair  and  safe  condition,  and  if  the  company  do  not 
do  so,  and  in  consequence  thereof  an  injury  happens  to  one  of 
its  servants  or  employes,  while  in  the  exercise  of  reasonable 
care  and  caution  himself,  the  company  will  be  liable  for  tlie 
injury  thus  sustained.  Brickman  vs.  S.  C  Ed.  Co.,  8  C.  S.? 
173. 

A  railroad  company  rnust  use  reasonable  care  and  caution 
in  the  selection  of  its  rolling-stock,  and  in  the  employment  of 
competent  persons  to  manage  its  business,  so  that  no  unneces- 
sary risk  shall  be  incurred  by  any  of  its  servants  in  the  dis- 
charge of  their  duties;  and  if  the  company  does  not  do  so,  and 
an  injury  happens  to  one  of  its  servants,  by  reason  of  such  neg- 
lect, the  company  will  be  liable  for  the  injury  thus  sustained, 
provided  the  person  injured  is  using  reasonable  care  and  cau- 
tion to  avoid  the  injury. 

It  is  a  duty  the  law  imposes  upon  railroad  companies  that 
they  shall  do  everything  that  reasonably  can  be  done  to  fur- 
nish safe  cars  to  its  employes,  to  be  used  by  them  in  working 
on  the  railroad,  and  it  is  not  a  duty  that  can  be  delegated  to 
its  officers  and  agents,  so  as  to  avoid  liability  on  the  |)art  of 
the  company. 


420  NEGLIGENCE. 

And  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
the  company,  through  the  negh'gence  and  want  of  reasonable 
care  of  its  servants  and  agents,  neglected  and  failed  to  furnish 
a  safe  car  upon  the  occasion  in  question,  but  did,  through  neg- 
ligence and  want  of  reasonable  care  and  caution,  furnish  one 
that  was  out  of  repair,  as  charged  in  the  declaration,  and  that 
by  reason  of  such  defect  the  plaintiff  [or  the  deceased),  while 
nsing  ordinary  care,  and  in  the  discharge  of  his  duty,  was  in- 
jured {or  hilled),  then  the  jury  should  find  the  defendant 
guilty ;  provided,  they  further  believe,  from  the  evidence,  that 
the  plaintiff  {or  the  deceased)  did  not  know  of  such  defect,  and 
could  not  have  known  the  same,  by  the  use  of  reasonable  care 
and  caution  on  his  part.  Berea  S.  Co.  vs.  Kraft,  31  Ohio  St., 
287. 

§  47.  Servant  Does  not  Take  the  Risk  of  Dangers  not  Incident 
to  the  Business. — The  court  instructs  the  jury,  that  where  a 
servant  is  injured  by  something  not  incident  to  his  employ- 
ment, but  by  a  temporary  peril,  to  which  he  is  exposed  by  the 
negligent  act  of  his  employer,  without  any  negligence  on  the 
servant's  part,  he  is  entitled  to  recover  damages,  from  the  em- 
ployer, on  account  of  such  injury.  That  when  a  servant  is 
employed  in  a  business,  and  at  a  place  not  dangerous,  and  the 
employer  negligently  and  carelessly  creates  a  peril  at  the  place 
where  the  servant  is  at  work,  and  the  servant  is  injured  there- 
by, then  the  servant  will  be  entitled  to  recover  for  such  injury, 
if  he  is  himself  without  fault  contributing  to  such  injury. 
Wharton  on  Neg.,  §  549 ;  Fairhanl-s  vs.  Haentzsche,  73  111., 
236;   Q.  31.  Co.  vs.  Kitts,  42  Mich.,  34. 

§  48.  Servant  not  Bound  to  Inquire,  etc. — The  jury  are  in- 
structed, that  an  em})loye  of  a  railroad  company,  assisting  in 
running  its  trains,  is  not  bound  to  know  or  inquire  whether  the 
road  has  been  safely  and  properly  constructed. 

There  is  an  imj^lied  undertaking  on  the  part  of  the  com- 
pany, with  its  employes,  that  all  that  can  reasonably  be  done 
to  render  the  road  safe,  has  been  done.  C.  <&  JV.  W.  Rd.  Co. 
vs.  Sweet,  45  111.,  197. 

§  49.     Negligence  of  the  Company  in  Employing  Servant. — T])o 


EAILROADS.  42 1 

jury  are  instructed,  as  a  matter  of  law,  that  if  a  servant  of  a 
railroad  company,  while  himself  using  reasonable  care  and 
caution,  to  avoid  injury,  be  injured  through  the  incomi)etency 
and  unskillfulness  of  a  fellow  servant,  or  in  consequence  of 
defects  in  the  machinery  or  track,  and  tlie  jury  believe,  from 
the  evidence,  that  the  company  was  guilty  of  a  want  of  ordi- 
nary care  and  attention  in  the  employment,  or  in  the  retention 
of  such  fellow  servant,  or  in  the  construction  or  repair  of  its 
machinery  or  track,  the  comi:»any  will  be  liable  in  damages, 
which  result  from  such  negligence,  if  any  such  damage  is 
proved.  Haurathj  vs.  N.  C.  Ed.  Co.,  46  Mo.,  280 ;  Ilarkins 
vs.  Standard,  etc.,  122  Mass.,  400;  Iluiitiiig,  etc.,  Rd.  Go.  vs. 
Decker,  84  Penn.  St.,  419. 

§  50.     Reasonable  Care  Only  Required  for  Safety  of  Employes. — 

As  respects  the  duty  of  a  master  or  employer  towards  a  serv- 
ant or  employe,  in  his  service,  the  court  instructs  the  jury, 
as  a  matter  of  law,  that  the  master,  or  employer,  is  not  bound 
to  provide  machinery  which  is  absolutely  safe.  The  law  im- 
poses on  the  master,  or  emploj^er,  only  the  obligation  to  use 
reasonable  and  ordinary  care,  skill  and  diligence,  in  procuring 
and  furnishing  suitable  and  safe  machinery.  Wharton  on  ^q^., 
%  205;  Wright  vs.  The  N.  T.  Gent.  Ed.  Go.,  25  Is".  Y.,  562; 
Cooley  on  Torts,  557;  Ladd  vs.  New  Bedford,  etc.,  Rd.  Go., 
119  Mass.,  412;  Indianapolis,  etc.,  Rd.  Go.  vs.  Love,  10  Ind., 
554;  I'ort  Wayne,  etc.,  vs.  Gildersleeve,  33  Mich.,  137;  Gauij) 
Point,  etc.,  Go.  vs.  Ballou,  71  111.,  417. 

The  court  instructs  the  jury,  that  no  person,  or  cor])oration, 
is  responsible  for  injuries  to  an  employe,  occasioned  by  the 
carelessness,  negligence  or  unskillfulness  of  a  fellow  servant, 
engaged  in  the  same  line  of  service;  provided  the  emi^loyer 
has  taken  proper  care  and  caution  to  engage  proper  servants 
to  perform  the  duties  assigned  to  them.  Nor  is  the  em ])1  oyer 
liable  for  injuries  thus  sustained,  if  the  person  injured  was, 
while  engaged  as  such  servant,  acquainted  with  the  character 
of  such  fellow  servant  for  capacity,  prudence  and  skill. 

The  rule  of  law  is,  that  when  a  person  engages  in  the  serv- 
ice of  another,  he  undertakes,  as  between  himself  and  his  em- 
ployer, to  run  all  the  ordinary  risks  incident  to  such  service; 
and  this  includes  the  risk  of  occasional  carelessness,  negligence 


422  Nl:G^IGK^'OK. 

or  unskillfulness  on  the  part  of  liis  fellow  sorvant?  CTigapfcd  in 
the  same  line  of  duty  and  service;  provided,  the  employe]-  has 
exercised  reasonable  care  and  caution  to  engage  competent  and 
careful  persons  to  discharge  the  duties  assigned  to  them. 
Smith  vs.  Lowell  Mfg.  Co.,  124  Mass.,  114. 

§  51.  Employe  Assumes  all  Ordinary  Risks.--  TiiC  jury  arc 
instructed,  that  where  a  person  enters  into  the  service  of  a 
railroad  company,  he  thereby  undertakes  to  run  all  the  ordinai-y 
risks  incident  to  the  employment,  including  his  own  negli- 
gence or  unskillfulness,  and  that  of  his  fellow  servants,  who 
&,re  engaged  in  the  same  line  of  duty,  provided  the  company 
has  taken  reasonable  care  and  precaution  to  engage  competent 
servants  to  discharge  the  duties  assigned  to  them.  T.^  W.  cfc 
W.  Rd.  Co.  vs.  DurUn,  76  Ilk,  395, 

The  jury  are  instructed,  that  a  servaiit,  when  he  engages  in 
a  particular  employment,  is  presumed  to  do  so  with  a  knowl- 
edge of,  and  a  taking  of  the  risks  of  its  ordinary  hazards, 
whether  from  the  carelessness  of  fellow  servants  in  the  same 
line  of  employment,  or  from  latent  defects  in  the  machinery 
and  appliances  used  in  the  business,  or  the  ordinary  dangers 
in  the  use  of  the  same. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  (or 
deceased)  was  engaged  in  the  employment  of  the  defendant 
when  he  was  injured,  and  that  such  injury  was  received  while 
in  the  discharge  of  his  duty  as  such  employe;  and  if  the  jury 
further  believe,  from  the  evidence,  that  such  injury  was 
occasioned  either  by  his  own  negligence,  carelessness  or  want 
of  skill,  or  by  that  of  his  fellow  servants,  engaged  in  the  same 
line  of  duty  or  service,  as  explained  in  these  instructions,  then 
the  jury  should  find  for  the  defendant;  provided,  they  further 
believe,  from  the  evidence,  that  the  defendant  was  not  guilty 
of  any  lack  of  care  or  prudence  in  selecting  or  retaining  such 
fellow  servants,  to  discharge  the  duties  assigned  to  them. 

The  jury  are  instructed,  that  where  an  employment  is 
attended  with  danger,  a  servant  engaging  in  it  assumes  the 
hazard  of  the  ordinary  perils  which  are  incident  to  it;  and  if 
he  receives  an  injury  from  an  accident,  which  is  an  ordinary 
peril  of  the  service  undertaken  by  him,  he  cannot  I'ecover 
damages  for  such  injury.  T.,  W.  <&  W.  Rd.  Co.  vs.  Black,  88 
111.,  112. 


EAILEOADS.  423 

§  52.  Servant  Having  Knowledge  of  Defects. — The  jury  are 
fiirtlicr  instnu-tcd,  as  a  matter  of  law,  that  an  employe  of  a 
raih'oad  company  caimot  reco\er  from  the  comj)auy  for  an 
injury  sulTored  in  tlie  course  of  the  business  about  which  he  is 
emp]o3'ed,  from  defective  machinery  nsed  tlierein,  or  from  the 
dangerous  condition  of  the  track,  after  he  has  knowledge  of 
such  defect  or  dangerous  condition,  and  continues  his  work 
without  objection.  C.  &  A.  Rd.  Co.  ys.  Munroe^  85  111.,  25; 
Fort  Wayne,  etc.,  led.  Co.  vs.  Gildersleeve,  33  Mich.,  133; 
Jolinmn  vs.  ^Vestern.,  etc.,  Rd.  Co..,  55  Ga.,  133;  Way  vs.  Rl. 
Cent.  Rd.  Co.,  40  la.,  341 ;  S—  vs.  Ward,  40  Mich.,  420. 

The  jury  are  instructed,  as  a  matter  of  law,  that  it  is  the 
duty  of  one  in  the  employ  of  a  railroad  company,  to  see  that 
the  machinei-y  which  he  uses  is  in  rejiair,  so  far  as  this  can  be 
done  by  the  exercise  of  such  care  and  prudence  as  would  be 
exercised  by  a  prudent  and  careful  man  engaged  in  the  same 
business;  and  when  such  machinery  is  found  to  be  out  of 
repair,  to  report  the  fact  to  the  company;  and  if  he  does  not 
do  so.  it  is  negligence  on  his  part,  and  tlie  company  will  not 
be  liable  for  any  injury  sustained  by  him,  occasioned  by  such 
machinery  being  out  of  repair.  T.,  W.  <&  W.  Rd.  Co.  vs. 
Eddy,  72  111.,  138;   Cent.  Rd.  Co.y^.  Kemiey,  58  Ga.,  485. 

The  jury  are  instructed,  that  if  a  servant  discovers  that 
machinery,  used  in  the  line  of  his  emi)loyment,  is  out  of  order, 
and  dangerous  to  himself,  and  he  does  not  stop  using  the 
same,  and  give  notice  thereof  to  his  employer,  or  his  agents, 
and  wait  until  it  is  put  in  proper  condition,  but  continues  to 
use  it,  and  is  injured  by  reason  of  its  being  in  such  unsafe 
condition,  then  the  employer  will  not  be  liable  for  the  injury, 
if  he  is  otherwise  without  fault.  Richardson  vs.  Coo^per^  88 
111.,  270. 

§  53.  Servant  Must  use  Reasonable  Care  and  Caution. — It  is  the 
duty  of  the  servants  of  the  company  to  use  all  reasonable  care 
and  diligence  to  see  that  the  machinery  used  by  tliem  in  the 
performance  of  their  duties,  is  in  fit  condition  for  use,  and  re- 
port the  defects,  if  any,  to  the  company,  and  if  they  do  not  do 
so,  it 'will  be  negligence  on  their  part.  C.  &  N.  .  Rd.  Co, 
vs.  Jackson,  55  111.,  492;  Lumley  vs.  Caswell^  47  la.,  159. 

The  jury  are  instructed,  that  although  machinery  furnished 


424  NEGLIGENCE. 

by  a  railroad  company,  for  tlie  use  of  its  employes,  may  be  un- 
safe, yet  if  an  employe,  knowing  the  character  of  the  machinery, 
continues  to  use  it,  he  is  bound  to  exercise  care  and  caution, 
reasonably  commensurate  with  the  apparent  danger,  and  if  he 
fails  to  do  so,  and  is  injured, -his  negligence  will  preclude  a 
recovery  against  the  company,  on  account  of  such  injury,  jf'., 
IF.  (&  W.  Ed.  Co.  vs.  Ashbury,  84  111.,  429. 

§  54.  Negligence  of  Fellow  Servant. — The  jury  are  instructed, 
that  the  rule  of  law,  that  an  action  will  not  lie  by  a  servant 
against  his  master  or  employer,  for  an  injury  sustained  through 
the  negligence  or  default  of  a  fellow  servant,  applies  only  to 
cases  where  the  injuries  complained  of  occur  without  the  fault 
of  the  employer,  either  in  the  act  which  caused  the  injury,  or 
in  the  employment  of  the  person  who  caused  it. 

While  it  is  true  that  a  common  emploj^er  is  not  responsible 
to  a  servant  for  an  injury  caused  by  the  negligence  of  his  fel- 
low servant,  engaged  in  the  same  line  of  employment,  yet  it 
is  the  duty  of  the  employer  to  use  all  reasonable  care,  caution 
and  prudence  to  provide  safe  structures,  competent  employes, 
and  all  appliances  necessary  to  the  safety  of  the  employed,  and 
to  adopt  all  reasonable  rules  and  regulations  to  avoid  injuries 
to  the  employed,  and,  having  adopted  such  rules,  to  conform 
to  them,  or  be  responsible  for  consequences  resulting  from  a 
departure  therei'rom.  Chicago  (&  iV.  W.  Rd.  Co.  vs.  Taylor, 
69' 111.,  4G1. 

The  master  docs  not  warrant  the  cc'mpetency  of  his  servants 
to  the  other  servauts.  The  exteut  of  the  master's  undertak- 
iug  is,  that  he  will  exercise  reasonable  care  in  the  selection  of 
an  employe,  and  if  his  incomjietency  is  discovered,  will 
dismiss  him  from  service.  The  master  will  be  liable,  where 
the  injury  is  imputable  to  his  negligence,  in  the  selection  of 
the  servant,  or  in  retaining  him  after  his  incompetency  is 
known.  Colurnbus,  C.  c&  I.  Cent.  Ed.  Co.  vs.  Troesch,  68 
111.,  545. 

§  55.  Fellow  Servants  Defined. — That  when  the  employment 
of  a  person  working  for  a  railroad  comj)any  is  in  a  different 
department  of  labor  from  other  servants,  and  when  he  is  not 
associated  with  such  other  servants  in  the  performance  of  their 


RAILROADS.  425 

respective  duties,  but  is  wholly  sej^arated  and  disconnected 
from  them,  in  the  performance  of  his  duties,  then  the  railroad 
company  is  liable  for  the  nef^ligence  of  such  other  servant,  if 
proven,  and  it  results  in  injury  to  the  person  so  employed, 
without  his  fault.  Schroeder  vs.  Md.  Co.,  47  la.,  375;  Lom- 
bard vs.  Ed.  Co.,  47  la.,  494. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  of 
the  accident  complained  of,  the  plaiutilf  was  in  the  employ  of 
the  defendant,  as  brakeman  on  one  of  its  freiffht  trains,  and 
that  while  so  employed,  and  in  the  line  of  his  duty,  he  received 
an  injury,  resulting  from  a  defective  brake  on  one  of  defend- 
ant's cars,  and  that  there  were  other  persons  in  the  employ  of 
the  company,  whose  duty  it  was  to  examine  the  cars  and  see 
th-it  the  brakes  were  in  good  repair  and  safe  condition,  then 
the  court  instructs  the  jury,  as  a  matter  of  law,  that  the  i)laint- 
iff  and  such  other  persons  were  not  fellow  servants  engaged 
in  the  same  grade  or  line  of  service,  within  the  meaning  of 
the  law.  Long  vs.  P.  Ed.  Co.  65  Mo.,  225;  Nashville  Ed- 
Co.  vs.  Jones,  9  Heisk.,  27. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  of  the 
accident  in  question,  the  plaintiff  was  in  the  employ  of  the  de- 
fendant as  fireman  on  one  of  its  locomotives,  and  that  while  so 
employed,  and  in  the  line  of  his  duty,  he  received  an  injury, 
resulting  from  the  negligence  or  want  of  ordinary  care  and 
skill  of  the  engineer  in  charge  of  the  same  locomotive,  then 
the  court  instructs  the  jury,  as  a  matter  of  law,  that  the  plaint- 
iff and  engineer  were  fellow  servants,  engaged  in  the  same 
grade  or  line  of  service,  within  the  moaning  of  the  law,  and 
the  defendant,  if  otherwise  without  fault,  would  not  be  liable  for 
such  injury.  Yaltez  vs.  O.  &  M.  Ed.  Co.,  85  111.,  500;  Lehigh 
■  Valley  Co.  vs.  Jones,  89  Penn.  St.,  432;  Beselvs.  N~.  Y.,etc., 
Ed.  Co.,  70  IST.  Y.,171;  Eagsdale  vs.  Memjjhis,  etc.,  Ed.  Co., 
59  Tenn.,  426. 

If  the  jury  believe,  from  the  evidence,  that,  at  the  time  of 
the  accident  in  questio^i,  the  plaintiff  was  in  the  employ  of  the 
defendant  coni|)any  as  a  brakeman  on  one  of  its  trains,  and 
that  while  so  employed  he  received  an  injury  which  was  occa- 
sioned by  the  ties  on  the  track,  at  the  point  where  the  acci- 
dent occurred,  being  rotten  and  unfit  for  use,  and  that  the  fail- 
ure to  replac/j  such  ties  with  sound  ones  resulted  from  the 


426  NEGLIGENCE. 

neo;ligence  of  the  road  master  and  section  men  having  diarge 
of  that  part  of  the  road,  and  that  the  plaintiff  was  himself 
guilt}''  of  no  negligence  contributing  to  the  injury,  then  the 
plaintiff  has  a  right  to  recover.  Houston,  etc.,  Rd.  Co.  vs. 
Dunham,  49  Tex.,  181. 

Although  the  jury  may  believe,  from  the  evidence,  that  at 
the  time  of  the  accident  in  question,  the  {Jjrcike)  was  defective 
and  that  the  injury  complained  of  resulted  therefrom,  still,  if 
the  jurj'  further  believe,  from  the  evidence,  that  none  of  the 
officers  or  agents  of  the  company  knew  of  the  defect,  and 
that  it  was  of  such  a  character  that  it  could  not  be  discovered 
by  the  exercise  of  reasonable  and  ordinary  care  in  that  behalf, 
then  the  company  would  not  be  liable  for  such  injury.  Cen- 
tral Rd.  Co.  vs.  Kenney,  58  Ga. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  of 
the  accident  in  question  the  plaintiff  was  in  the  employ  of  the 
defendant  corporation  as  a  mechanic  engaged  in  the  repairs 
of  its  cars,  and  that,  while  so  employed  and  in  the  line  of  his 
duty,  he  received  an  injury,  resulting  from  the  negligence  or 
want  of  ordinary  care  and  skill  of  an  engineer,  in  charge  of  a 
locomotive  engaged  in  switching  cars,  then  the  court  instructs 
the  jury,  as  a  matter  of  law,  that  the  said  plaintiff  and  the  said 
engineer  were  not  fellow  servants  engaged  in  the  same  grade 
or  line  of  service,  and  tlie  plaintiff  is  entitled  to  recover  in 
this  suit,  provided  the  jury  further  believe,  from  the  evidence, 
that  the  plaintiff",  at  the  time  of  the  injury,  was  exercising 
reasonable  care  and  caution  to  avoid  such  injury.  Pittsburg, 
etc.,  Rd.  Go.  vs.  Powers,  74  111.,  311;  ConU a:  Sullivan  vs. 
Toledo,  etc.,  Rd.  Co.,  oS  Ind.,  26. 

Negligence  of  Defendant  and  of  Fellow  Servant. — If  the  jury  be- 
lieve, from  tlie  evidence,  that  the  defendant  was  guilty  of  neg- 
ligence, as  charged  in  the  declaration,  and  that  the  plaintiff  by 
reason  thereof  was  injured  and  damaged  as  claimed  by  him, 
and  that  he  himself  was  guilty  of  no  want  of  ordinary  cai-c 
that  contributed  to  the  injury,  then  the  defendant  is  liable  in 
this  action,  although  you  may  further  believe,  from  the  evi- 
dence, that  the  negligence  of  a  fellow  servant  contributed  to 
such  injury.  In  such  cases  the  rule  of  law  is  that  contributory 
negligence  to  defeat  an  action  must  be  that  of  the  plaintiff'  or 


KAILROADS.  427 

of  some   person  for  whose  acts  lie  is  responsible.     Shetter  vs. 
C.  d:  i\^.  W.  Rd.  Co.,  49  Wis.,  509. 

§  56.  •  Duty  to  make  Proper  Rules  for  Safety  of  Servant. — That 
it  is  the  duty  of  a  railway  company  to  make  all  reasonable  and 
proper  regulations  for  the  safety  of  its  employes.  And  thid 
being  an  affirmative  fact,  it  devolves  upon  the  company  to 
show  an  observance  of  the  duty  when  sued  by  a  servant  for 
an  injury  received  when  in  its  service,  and  negligence  is  shown. 
Sheai-m.  &  Ked.  on  Neg.,  §  93. 

A  railroad  company  is  not  liable  for  an  injury  which  liap- 
pens  to  an  employe  in  consequence  of  a  disregard  of  its  plain 
instructions,  if  known  to  the  person  injured,  although  other 
employes  also  disregard  the  same  instructions.  Wolsey  vs. 
Railroad  Qo.,  33  Ohio  St.,  227. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant, 
before  the  injury  in  question,  had  adopted  a  rule  for  the  con- 
duct of  its  employes  requiring  them,  etc.,  and  that  the  plaint- 
iff had  knowledge  of  such  rule,  but  neglected  to  avail  himself 
of  its  ]irovisions,  and  in  consequence  of  such  neglect  sustained 
the  injury  complained  of,  then  he  cannot  hold  the  defendant 
liable  therefor.     Ihid. 

The  defendant  had  the  right  to  make  such  rules  and  regu- 
lations for  the  conduct  of  its  servants  and  agents,  while  en- 
gaged in  its  service,  as  in  its  judgment  was  reasonable  and 
proper,  or  would  conduce  to  the  safety  and  comfort  of  its  em- 
ployes; and  all  servants,  while  engaged  in  such  service,  with  a 
knowledge  of  such  rules  and  legulations,  are  bound  to  act  in 
conformity  therewith;  and  if  injuries  are  sustained  by  them, 
while  acting  in  violation  thereof,  no  recovery  can  be  had  of 
the  defendant  therefor  if  such  violation  was  the  cause  of,  or 
materially  contributed  to,  such  injury.  "Whether,  before  tlie 
injury  complained  of,  the  defendant  in  this  case  had  adopted 
a  rule  requiring,  etc.,  and  whether  the  plaintiff  had  knowledge 
of  such  rule,  and  whether  he  was  violating  such  rule  when  he 
was  injured,  and  whether,  if  he  was  so  violating  it,  such  vio- 
lation contributed  to  the  injur^^,  are  questions  of  fact,  to  be 
determined  by  the  jury  from  the  evidence.     Ihid. 


CHAPTER  XXXV. 

NEGOTIABLE  INSTRUMENTS. 


Sec.    1.  Presumption  in  favor  of  the  holder. 

2.  The  presumption  can  only  be  overcome  by  proof. 

3.  Innocent  purchaser — Taken  as  security. 

4.  Note  taken  in  payment  or  part  payment,  etc 

5.  Assignee  with  notice  from  assignee  without  notice. 

6.  Indorsement  in  blank. 

7.  Assignee  after  maturity. 

8.  Assignee  without  consideration. 

9.  Assignee  before  maturity  without  notice,  etc. 

10.  Burden  of  proof. 

11.  Assignee  with  notice  of  suspicious  facts. 

12.  Who  is  deemed  a  bona  _fide  holder. 

13.  Assignee  with  knowledge. 

GUAKA.NTOR    OF   COLLKCTION — INDORSER    OK    A.SSIGNOK ILLINOIS. 

Sec.  14.  Liability  fixed  by  statute— Illinois. 

15.  Intention  does  not  govern. 

16.  Due  diligence  defined. 

17.  Suit  unavailing — Due  diligence  defined. 

18.  Part  of  note  collectible  against  uiaker. 

19.  Maker  removed  from  the  State. 

20.  Insolvency  of  maker. 

21.  Execution  returned — No  property  found. 

22.  Insolvency  may  be  proved  by  other  evidence. 

23.  Return  of  the  officer  not  conclusive. 

24.  Execution  for  justice,  no  evidence  as  to  real  estate. 

25.  Possession  of  persona!  property,  no  evidence  of  ownership. 

GUARANTOK  OF  I'AYMKiS'T. 

26.  Guarantor — Liability  generally. 

27.  Name  of  a  third  person  on  the  back  of  the  note — Presumptions. 

28.  Liable  until  the  note  is  paid. 

29.  Delay  will  not  release. 

30.  Consideration  for  guaranty. 

31.  Release  of  guarantor  or  surety  by  alteration  of  the  note. 

32.  Extending  time — Release  of  guarantor. 

33.  Subsequent  promise  to  pay. 

INDORSER. 

34.  Demand  of  payment  and  notice. 

(428) 


NEGOTIAliLE    INSTRUMENTS.  429 

35.  Failure  of  consideration — Burden  of  proof. 

36.  Considpration,  when  presumed. 

37.  Abandonment  of  claim  a  good  consideration. 

38.  Disputed  claim  must  be  sustainable. 

39.  Want  of  consideration. 

40.  Note  obtained  by  fraudulent  representations. 

41.  Representations  must  be  material. 

42.  Note  obtained  by  fraud  and  circumvention. 

43.  Note  void  by  fraud  and  circumvention. 

44.  Fraud  in  the  consideration  not  sutlicient. 

45.  Signing  without  reading. 

46.  Mistake  as  to  legal  effect. 

47.  Reasonable  care,  what. 

48.  Must  use  reasonable  care  to  avoid  imposition. 

49.  Burden  of  proof. 

50.  Fraud  may  be  waived. 

51.  Note  stolen  or  wrorgfully  obtained. 
.52.  Duress — Abuse  of  criminal  process. 

53.  Lawful  imprisonment  not  duress. 

54.  Giving  note  not  payment. 

55.  New  party — New  consideration. 

§  1.  Pre.sum|)tions  in  Favor  of  the  Holder. — The  court  in- 
structs the  jury,  that  the  possession  of  a  note,  indorsed  in 
blank,  unaccompanied  by  any  declaration  or  other  evidence  in 
regard  to  it,  is  prima  facie  evidence  that  the  holder  is  the 
owner  of  it;  that  he  took  it  for  value  before  it  became  due, 
and  in  the  regular  course  of  business.  1  Pars,  on  Notes  and 
Bills,  255;  Fettee  vs.  Proiit,  3  Gray,  502;  Warren  vs.  Gil- 
man,  15  Me.,  YO;  Dugan  vs.  U.  S.,  3  Wlieat.,  172;  Kelhj  vs. 
Ford^  4  la.,  140;  Goodman  vs.  Shnonds,  20  How.,  343;  Cook 
vs.  Helms,  5  Wis.,  107;  Farwell  vs.  Myers,  36  III,  510; 
tStoddard  vs.  Burton,  41  la.,  582. 

That  the  indorsee  of  a  promissory  note,  in  the  absence  of 
proof  to  the  contrary,  is  presumed  in  law  to  have  taken  it  in 
due  course  of  trade  before  maturity,  for  value  and  in  good 
faith. 

When  a  note  is  indorsed  without  date,  the  presumption  of 
law  is,  in  the  absence  of  proof  to  the  contrary,  that  it  was  in- 
dorsed before  it  became  due. 

When  the  assignment  of  a  promissory  note  is  without  date, 
the  law  raises  a  presumption  tliat  the  transfer  was  made  before 
the  maturity  of  the  note,  and  to  rebut  this  presumption  the 
burden  of  proof  is  upon  the  person  alleging  tliat  the  note  was 
assigned  after  maturitv.     Richards  vs.  Betzer,  53  111.,  466. 


420  NEGOTIABLE    INSTKUMENTS. 

§  2.  Presumption  can  only  be  Overcome  by  Proof. — A  person 
questioning  tha  good  faith  of  the  assignment  of  a  note  in  the 
hands  of  an  assignee,  in  order  to  defeat  a  recovery,  must  prove, 
by  a  preponderance  of  evidence,  that  the  assignment  was  made 
after  the  maturity  of  the  note,  or  that  it  was  not  made  for 
vahie,  or  that  the  transaction  was  for  some  fraudulent  purpose; 
or  tliat  the  assignee  took  the  note  with  notice  of  the  defeuse 
interposed  by  the  defendant.  1  Pars,  on  N,  &  B.,  255;  Cook 
vs.  Helms,  5  Wis.,  107;  Dejpuy  vs.  Schuyler^  45  111.,  306. 

The  c  >urt  instructs  the  jury,  that  the  note  introduced  in  evi- 
dence is  sufficient  j-jirm^  facie  evidence  to  entitle  the  plaint- 
ifE  to  recover  the  full  amount  thereof,  principal  and  interest, 
according  to  the  terms  of  the  note,  less  the  credits  indorsed 
thereon. 

If  you  believe,  from  the  evidence,  that  the  note  in  qnestion 
was  assigned  and  indorsed  by  the  payee  thereof,  to  the  plaintiff; 
and  if  you  also  find  that  there  is  no  evidence  that  it  was 
assigned  after  maturity,  or  that  the  plaintiff  took  it  with  notice 
of  the  alleged  defense  thei-eto,  or  that  it  was  so  assigned  with- 
out consideration,  then  the  law  will  presume  that  it  was  in- 
dorsed to  plaintiff"  before  it  was  due;  that  he  paid  a  valuable 
consideration  therefor,  and  that  he  had  no  notice  of  any 
defense  to  the  said  note. 

§  3.  Innocent  Purchaser — Taken  as  Security. — The  court  in- 
structs the  jury,  that  the  indorsee  of  a  promissory  note,  before 
its  maturity,  taking  it  as  security  for  a  pre-existing  debt,  in 
the  ordinary  course  of  business  and  without  any  express  agree- 
ment, is  deemed  a  holder  for  a  valuable  consideration,  and  he 
will  hold  the  note  free  from  defenses  on  the  part  of  the  maker, 
of  which  he  had  no  notice  at  the  time  of  taking  it.  1  Par- 
sons on  N.  &  B.,  218;  Bowman  vs.  Millison^  58  III.,  36; 
Carlisle  vs.  Wishart,  11  Ohio,  172;  Outiorite  vs.  Porter,  13 
Mich.,  533;  Stevens  vs.  Campbell,  13  "Wis.,  375;  Contra: 
Stalker  vs.  McDonald,  6  Hill,  93;  Cook  vs.  Helms,  5  Wis., 
107;   Grimm  vs.    Warner,  45  la.,  106. 

§  4.     Note  Taken   in  Payment  or  Part  Payment,  etc. — If  the 

jury  believe,  from  the  evidence,  that  before  the  alleged  trans- 
fer of  the  note,  the   said  A.  B.  {payeS)  was  indebted  to  the 


NEGOTIAHLE    INSTRUMENTS.  431 

plaintiff,  and  tluit  the  said  note  was  assif^ned  to  tlie  plaintiff 
by  the  said  A.  B.  in  {part)  payment  of  such  an  indebtedness, 
then  the  plaintiff  is  what  is  known  in  law  as  an  innocent  pur- 
chaser of  the  note;  provided,  the  jury  further  believe,  from 
the  evidence,  that  he  took  the  note  in  good  faith  before  it 
became  due,  and  without  any  notice  of  the  alleged  defense 
thereto.     Clary  vs.  Sarrency,  58  Ga.,  83. 

§  5.     Assignee  with  Notice  from  an  Assignee  witliout  Notice. — 

The  court  instructs  the  jury,  that  if  a  note  is  assigned  before 
maturity,  for  vahie,  to  a  honafide  purchaser,  without  notice,  the 
assignee  will  be  protected  against  any  defense  by  the  maker; 
and  a  subsequent  purchaser  of  the  note  from  such  assignee, 
even  with  notice,  will  succeed  to  his  rights  in  the  same  condi 
tion  he  held  them.  A  defense  to  the  note  having  been  once 
cut  off  by  its  transfer  to  an  innocent  holder,  will  not  be  re 
vived  by  a  subsequent  assignment  to  a  person  with  notice  of 
such  defense.      Woodioorth   vs.  Hantoon,  40  111.,  131. 

The  law  is,  that  the  holder,  for  value,  of  a  negotiable  note, 
may  recover  on  the  note,  though  he  was  fully  informed,  when 
he  received  it,  that  it  was  obtained  from  the  maker  by  fraud; 
provided,  such  holder  obtains  it  from  a  person  who  took  the 
note,  in  the  usual  course  of  business,  in  good  faith  and  for 
value.     Riley  vs.  ShawaoJcer,  50  Ind.,  592. 

§  6.     Indorsement  in  Blank. — A  note  is  said  to  be  indorsed 

in  blank  when  the  indorser's  name  is  written  on  the  back, 
leaving  a  blank  over  the  name  for  the  insertion  of  the  name 
of  an  indorsee,  or  person  to  whom  it  is  indorsed.  And  when 
the  indorsement  remains  in  blank,  the  n®te  may  be  passed 
from  person  to  person  by  mere  delivery,  and  the  last  holder- 
has  the  riofht  to  till  in  his  own  name  as  indorsee,  and  brino- 
suit  on  the  note  in  his  own  name,  as  though  it  had  been 
indorsed  directly  to  him  in  the  first  instance.  2  Parsons  on 
Notes  and  Bills,  19,  20;  Palmer  vs.  Marshall,  60  111.,  289. 

§  7.  Assignee  after  Maturity. — An  assignee  of  a  promissory 
note,  who  takes  it  after  maturity,  is  supposed  to  have  notice 
of  any  defense  that  exists  against  it;  and  such  defense  may 
be  made  as  effectually  against  the  note  in  the  hands  of  such 


432  NEGOTIABLE    INSTRUMENTS. 

assignee  as  if  the  suit  had  been  brouglit  by  the  original  payee 
of  the  note.     Davis  vs.  Neleigh,  7  Neb.,  78. 

§  8.  Assignment  without  Consideration. — The  jury  are  in- 
structed, that  when  a  promissory  note  is  assigned  without  any 
consideration  therefor,  the  assignee  takes  it  as  a  mere  volun- 
teer, and  holds  it  subject  to  all  its  infirmities,  the  same  as 
if  he  had  had  actual  notice  of  them  at  the  time  of  the  assign- 
ment, or  as  if  the  note  had  been  assigned  to  him  after  its 
maturity.     1  Parsons  on  Notes  and  Bills,  262. 

§  9.  Assignee  before  Maturity  witliont  Notice,  etc.  —  Tlie 
court  instructs  the  jury,  as  a  matter  of  law,  that  the  consider- 
ation of  a  negotiable  note  cannot  be  imj:)eached  in  the  hands 
of  an  innocent  purchaser,  for  value,  who  has  received  it  in 
good  faith  before  ii  b3cam3  due,  without  any  notice  of  such 
defense. 

§  10.  Burden  of  Proof. — If  the  jury  believe,  from  the  evi- 
dence, that  the  defendant  made  the  note  in  question,  then, 
under  the  issues  in  this  case,  the  defendant  assumes  the  burden 
of  proving,  by  a  preponderance  of  evidence,  not  only  that 
the  consideration  of  the  note  has  failed  in  part  {or  has  wholhj 
failed),  as  alleged  in  his  pleas,  but  also  that  the  plaintiff  took 
the  said  note  after  it  became  due,  or  without  pajnng  any  con- 
sideration therefor,  or  that  he  had  notice  of  the  alleged  fail- 
ure of  consideration  at  the  time  he  purchased  the  note,  if  it 
appears,  from  the  evidence,  that  he  did  purchase  it. 

§  11.  Assignee  with  Notice  of  Suspicious  Facts. — The  court 
instructs  the  jury,  that  where  a  i^erson  takes  an  assignment  of 
a  promissory  note  for  a  vahiable  consideration,  before  due, 
and  is  not  guilty  of  bad  faith,  even  though  he  may  be  guilty 
of  gross  negligence,  he  will  hold  it  by  a  title  valid  against  all 
the  world,  and  it  will  not  be  subject  to  the  defense  of  a  fail- 
ure of  consideration  in  his  hands.  Lafayette  Sav.  Bk.  vs.  St. 
Louis,  4  Mo.  A  pp.,  270. 

A  party  who  takes  commercial  paper,  by  indorsement  be- 
fore due,  without  knowledge  of  any  defects  of  title  or  defense 
lo  it,  and  for  a  valuable  consideration,  will  take  a  good  title 


KEOOTIAIJLE    INSTRUMENTS,  433 

unaffected  by  any  defense  goincj  to  the  consideration.  Sus- 
picion of  the  defect  of  title,  or  knowledge  of  circumstances 
which  would  excite  suspicion  in  the  mind  of  a  prudent  man, 
will  not  defeat  his  title,  or  let  in  a  defense  not  otherwise  ad- 
missible against  it  in  his  hands.  That  result  can  only  be  pro- 
duced by  bad  faith  on  his  |;art.  ComMock  vs.  TLmnah,  76  111., 
531 ;  Edwd.  on  B.  &  N.,  318 ;  Goodman  vs,  Uarmy,  4  A.  &  E. 
870 ;  1  Pars,  on  N.  &  B.,  258 ;  Goodman  vs.  SimondSj  20 
How.,  343-363 ;  Farrell  vs.  Lovett,  68  Me.,  326. 

Although  the  assignee  of  a  note  may  have  reason  to  know, 
or  may  actually  know,  whon  he  buys  it,  for  what  the  note  was 
given,  that  fact  alone  will  not  make  him  chargeable  with 
knowledge  of  special  defenses  to  it;  and  in  this  case,  although 
the  jury  may  believe,  from  the  evidence,  that  the  plaintiff 
knew  when  he  purchased  the  note  that  it  was  given  for,  etc., 
yet,  if  the  jury  further  believe,  from  the  eviden-3,  that  he  had 
no  notice  of  the  special  defense  now  set  np  by  the  defendant, 
and  had  no  reason  to  suspect  it,  he  will  not  be  chai'geable  with 
notice  of  the  same ;  nor  can  he  be  affected  with  such  de- 
fense  in  this  suit;  provided,  the  evidence  shows  that  the  said 
note  w^as  assigned  to  him  in  good  faith  for  a  valuable  considera- 
tion, before  the  maturity  of  the  note.  Borde^i  vs.  Clarh^  26 
Mich.,  410, 

§  12,  Who  Deemed  a  Bona  Fide  Holder. — A  holder  of  negoti- 
able paper,  who  takes  it  before  maturity,  for  a  valuable  con- 
sideration, in  the  usual  course  of  business,  without  knowledge 
of  facts  which  impeach  its  validity,  as  between  antecedent 
parties,  is  deemed  a  hona  fide  holder,  Crosby  vs.  Tanner,  40 
la.,  136;    Twdchell  vs,  McMuHrie,  77  Penn.  St.,  383, 

In  order  to  defeat  a  promissory  note  in  the  hands  of  a  hona 
fide  holder,  it  is  not  enough  to  show  that  he  took  it  under  cir- 
cumstances calculated  to  excite  suspicion.  To  defeat  the  note 
in  his  hands  it  must  appear,  by  a  preponderance  of  evidence, 
that  he  was  guilty  of  a  want  of  honesty,  or  of  bad  faith  in 
acquiring  it,  Johnson  vs.  TFc///,  27  Ohio  St.,  374;  Shreeves 
YB.  Allen,  79  111.,  553;  Hamilton  vs.  Marls,  63  Mo.,  167; 
Moorehead  \?,.  Gilmore,  77  Penn.  St.,  118, 

The  jury  are  instructed,  that  a  party  about  to  take  an  assign- 
ment of  a  promissory  note,  is  under  no  obligation  to  call  upon 
28 


434  NEGOTIABLE    lASTEUMENTS. 

the  maker  and  make  inquiry  as  to  possible  defenses,  wliicli  he 
may  have,  but  of  which  the  purchaser  has  no  notice,  either 
from  something  appearing  on  the  face  of  the  paper,  or  from 
facts  communicated  to  him  at  the  time.  Houry  vs.  Ejpjpinger, 
o4  j\[icli.,  29;  Murray  vs.  Beckiaith,  81  111.,  43. 

§  13.  Assignee  with  Knowledge. — If  the  jury  believe,  from 
th3  evidence,  that  the  ]:)]aintiff,  before  he  purchased  said  note, 
knew,  or,  as  an  ordinarily  prudent  man,  had  reason  to  believe, 
from  circumstances  brought  to  his  knowledge,  before  he  pur- 
chased it,  that  the  defendant  had,  or  claimed  to  have,  a  defense 
to  said  note,  or  to  some  part  of  it,  then  the  plaintiff  is  not  an 
innocent  liolder  of  said  note.  1  Pars,  on  ]^.  &B.,  258;  Edwd. 
on  B.  &  N.,  320. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  is 
not  an  innocent  holder  of  said  note,  as  explained  in  these  in- 
structions, then  the  defendant  is  entitled  to  set  up  the  same 
defenses  to  it  that  he  could  have  set  up  if  suit  had  been 
brought  by  the  payee  of  said  note. 

GUARANTOR     OF     COLLECTION — INDOESER      OR      ASSIGNOR,    UNDER 
THE    STATUTE  OF  ILLINOIS. 

Note. — The  liability  of  an  indorser  or  assignor  of  a  promissory  note,  un- 
der the  statutes  of  Illinois,  is  substantitiUy  the  same  as  that  of  a  guarantor  of 
collection  by  the  law  merchant,  except,  perhaps,  that  the  guarantor  is  entitled 
to  reasonable  notice  if  the  holder  fails  to  collect  from  the  maker.  2  Pars, 
on  N.  &  B.,  141;  Wolf e  \b.  Brown,  b  Ohio  St.,  304;  Day  vs.  Elmore,  ^ 
Wis.,  190;  GilUvgham  vs.  Bonrdman.  29  Me.,  79:  Ransom  vs.  Sherwood, 
26  Conn.,  48 i":  Camden  vs.  Doremus,  B  How.,  515;  G>'ee)i  vs.  Thvnipson, 
83  la.,  293;  Judson  vs.  Goal-ins,  37  III.,  286. 

§  14.  Liability  Fixed  by  Statute — Illinois. — The  Jury  are  in- 
structed, that  under  the  laws  of  this  State,  the  assignor  of  a 
promissory  note  is  liable  to  pay  the  same  to  the  assignee;  pro- 
vided, the  assignee  shall  have  used  due  diligence  to  collect  tljc 
same  from  the  maker,  by  the  institution  and  prosecution  of  a 
suit  against  him;  and  if  the  jury  believe,  from  the  evidence, 
that  the  institution  of  such  suit  would  have  been  unavailing  to 
collect  the  note,  or  any  part  of  it,  from  the  maker,  or  if  the 
maker  had  absconded,  resided  out  of,  or  had  left  the  state 
when  the  note  became  due,  then  the  assignor  would  be  liable 


NEGOTIABLE    INSTRUMENTS.  435 

without  the  institution  of  a  suit,  tlie  same  as  if  due  diligence 
by  suit  had  been  used  against  the  maker.  Mason  vs.  Barton^ 
51  111.,  349;  Beattie  vs.  Browne,  64  111.,  360. 

§  15.  Intention  does  not  Govern. — The  jury  are  mstrncted, 
that  it  is  immaterial  in  this  case  what  idea  the  defendant  had 
as  to  his  liability  as  the  indorser  of  the  note;  such  liability  is 
fixed  by  law.  And  if  the  jury  believe,  from  the  evidence, 
that  the  defendant  sold  and  indorsed  the  note,  then  he  is  liable, 
in  law,  as  the  indorser,  whatever  may  have  been  his  intention 
or  understanding  at  the  time.  Ilawkinson  vs.  Olson,  48  111., 
277. 

§  16.  Due  Diligence  Defined. — The  court  instructs  the  jury, 
that  in  order  to  hold  the  indorser  of  a  note  liable  on  his  in- 
dorsement, it  is  not  necessary  that  the  holder,  in  his  attempts 
to  collect  the  note  of  the  maker,  should  have  used  the  greatest 
possible  degree  of  diligence.  He  is  only  required  to  use  such 
diligence  as  is  ordinarily  used  by  careful,  vigilant  and  prudent 
men  in  the  conduct  of  their  own  affairs.  2  Pars,  on  N.  &  B., 
141. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff 
instituted  a  suit  on  the  note  in  question,  against  the  maker,  in 
the  circuit  court  of  the  county  in  which  the  maker  resided,  at 
the  first  term  of  said  court  after  the  note  became  due,  and 
prosecuted  said  suit  to  final  judgment,  with  all  reasonable  dili- 
gence, and,  after  the  judgment  was  obtained,  with  all  reason- 
able diligence  caused  an  execution  to  issue  thereon,  and  j)laced 
the  same  in  the  hands  of  the  sheriff  of  said  county;  and  if  the 
jury  further  believe,  from  the  evidence,  that  the  sheriff  at  no 
time  during  the  life  of  the  execution,  was  able  to  find  property 
of  the  defendant  in  the  execution  to  satisfy  the  same,  or  any 
part  thereof,  and  that  at  the  expiration  of  [ninefi/)  days  from 
its  issue  he  returned  the  execution,  no  property  found,  then  the 
plaintiff  is  entitled  to  recover  in  this  suit  the  amount  of  said 
note  and  interest,  provided  the  jury  further  believe,  from  the 
evidence,  that  during  the  time  the  sheriff  so  held  the  execu- 
tion, and  ever  since  that  time,  said  A.  B.  has  had  no  property, 
out  of  which  the  said  execution,  or  any  part  thereof,  could 
have  been  made  by  the  exercise  of  ordinary  diligence  on  the 
part  of  the  plaintiff.     Judson  vs.  Goohin^  37  111.,  286. 


436  KEGOTIAULE    INSTEUMENTS. 

If  the  jury  b2Hcve,  from  the  evidence,  that  the  plaintiff 
prosecuted  the  maker  of  the  note  bj  suit  at  the  first  term  of 
court  after  the  note  was  due,  and  recovered  judgment  upon  it 
at  said  term,  and,  with  all  reasonable  diligence,  had  his  execu- 
tion issued  to  the  sheriff  of  the  county  where  the  maker  of 
the  note  resided,  and  the  sheriff  returned  the  said  execution,  in 
whole  [or  in  part)  unsatisfied,  and  no  property  found,  then 
the  plaintiff  is  entitled  to  recover;  provided  the  jury  believe, 
from  the  evidence,  that  the  defendant,  in  the  execution,  has 
had  no  property  in  liis  possession  liable  to  be  taken  on  said 
execution,  as  explained  in  these  instructions,  since  the  maturity 
of  the  said  note,  and  before  the  commencement  of  this  suit,  or 
no  such  property  known  to  the  plaintiff"  or  his  attorney,  or 
which  they  might  have  discovered,  by  the  exercise  of  reason- 
able care  and  diligence  directed  to  that  end. 

In  order  to  render  the  assignor  of  a  promissory  note  liable 
on  his  indorsement,  upon  the  ground  thnt  the  holder  hasused 
due  diligence  to  collect  the  note  from  the  maker,  the  assignee 
must  show,  by  a  preponlerance  of  evidence,  that  he  instituted 
a  suit  against  the  maker  and  prosecuted  it  to  judgment,  at  the 
earliest  prarjiticable  time,  and  that  he  took  steps  to  enforce 
payment  of  the  judgment,  by  issuing  an  execution  thereon,  and 
placing  the  same  in  the  hands  of  the  proper  officer,  as  soon  as 
this  could  be  done  by  the  exercise  of  reasonable  diligence  in 
that  behalf. 

Our  statute,  in  relation  to  promissory  notes,  makes  the  in- 
dorser  or  assignor  of  a  promissory  note  liable  only  in  case  the 
assignee  has  used  due  diligence  to  collect  the  money  from  the 
maker. 

Due  diligence  does  not  consist  in  merely  instituting  a  suit 
against  the  maker  and  prosecuting  it  to  judgment,  but,  in 
order  to  show  this  diligence,  the  assignee  must  show,  by  a 
preponderance  of  evidence,  that  within  the  county  where  the 
suit  was  commenced  he  had  used  all  the  means  that  the  law 
has  furnished  him  with  to  enforce  the  collection  of  the  money. 
Holhrook  vs.  Yihhard^  2  Scam.,  465;  Wilson  vs.  Binford,  54 
Ind.,  569. 

§  17.  Wliat  is  Due  Diligence — Suit  Unavailin;*. — That  when 
a  note  is  assigned  by  the  payee,  the  intention  of   the  law  is, 


NEGOTIABLE    INSTRUMENTS.  437 

tliat  the  assip^nee  sliall  make  the  amount  out  of  the  maker  of 
the  note,  if  it  can  be  done  bj  reasonable  diligence. 

Due  and  reasonable  diligence  means  such  diligence  as  a  care- 
ful, diligent  and  prudent  man  would  ordinarily  exercise  in 
the  conduct  of  his  own  affairs.  Judson  vs.  Gookins^  37  111., 
2S6. 

The  jury  are  instructed,  that  when  the  indorsee  seeks  to 
recover  against  the  indorser  of  a  promissory  note,  upon  the 
ground  that  a  suit  against  the  maker  would  have  been  unavail- 
ing, the  fact,  if  proved,  that  the  maker  was  solvent  when  the 
note  came  due,  will  not  afl'ect  the  liability  of  the  indorser,  if 
it  appears,  from  the  evidence,  that  such  solvency  did  not  con- 
tinue until  a  suit  against  the  maker  could  have  been  made 
availing. 

If  the  jury  believe,  from  the  evidence,  that  on  or  about, 
etc.,  the  defendant  sold  to  the  plaintiff  the  note  shown  in  evi- 
dence, and  then  and  there  assigned  the  same  to  him  by  writing 
his  name  on  the  back  thereof,  and  that  at  the  time  when  the 
note  came  due  the  said  makers,  and  each  of  them,  was  insolv- 
ent, and  have  ever  since  remained  so,  and  that  a  suit  against 
them  would  have  been  unavailing,  then  the  jury  should  find 
the  issues  for  the  plaintiff,  and  assess  the  damages  at  the 
amount  due  on  said  note.  MoChirg  vs.  Fryer,  15  Pcnn.  St., 
293;  Grilligham  vs.  Bordman,  29  Me.,  79;  Bull  vs.  Bliss,  30 
Yt,  127;  Stone  vs.  Bochefeller,  29  Ohio  St.,  625;  Miles  vs. 
Linnell,  97  Mass.,  298.  But  see  Bosman  vs.  Akerly,  39  Mich., 
710;  Frank  vs.  Marsh,  29  Wis.,  649;  Craig  vs.  Perkins^  40 
K.  Y.,  181. 

§  18.  Part  of  Note  Collectible  against  Maker. — Though  the 
jury  may  believe,  from  the  evidence,  that  by  the  use  of  reason- 
able diligence  against  the  makers,  a  portion  of  the  note  could 
have  been  made  out  of  them,  but  not  the  whole  of  it,  then  the 
plaintiff  is  entitled  to  recover,  in  this  action,  the  residue  of 
the  debt,  which  could  not  have  been  made  by  suit,  and  reason- 
able diligence  against  the  makers. 

§  19.  Maker  Removed  from  the  State. — The  law  does  not 
require  that  the  assignee  of  a  promissory  note  shall  resort  to 
the  extraordinary  process  of  attachmeat  against  the   maker 


438  NEGOTIARLE    INSTRITMENTS. 

before  he  can  hold  the  indorser  liable.  If  the  juvy  believe, 
from  the  evidence,  that  before  the  maturity  of  the  note  in 
question  the  maker  of  the  note  had  removed  from  this  state 
and  was  residing  out  of  this  state  when  the  note  became  due, 
then  the  plaintiff  had  a  rio-ht  to  ]:»roceed  at  once  against  the 
defendant  and  hold  him  responsible  for  the  payment  of  the 
note.      Titus  vs.  Seward,  QS  Ind.,  456. 

§  20.  Insolvency  of  Maker. — If  the  Jury  believe,  from  the 
evidence,  that  the  plaintiff  could  not  have  collected  the  amount 
of  said  note,  or  any  part  of  it,  from  the  maker,  by  due  dili- 
gence, in  the  institution  and  prosecution  of  a  suit  against  him, 
at  any  time  after  the  note  became  due,  and  before  the  com- 
mencement of  this  suit,  then  the  plaintitt'is  entitled  to  recover. 

If  the  Jury  believe,  from  the  evidence,  that  the  maker  of 
the  note  in  question,  at  the  time  the  same  came  due,  had  no 
property  except  what  was  exemi^t  from  execution,  as  explained 
in  these  instructions,  and  that  he  was  insolvent,  and  that  that 
condition  of  things  continued  to  the  commencement  of  this 
suit,  then  the  plaintiff  w^as  under  no  obligation  to  commence  a 
suit  against  the  maker  of  the  note,  in  order  to  hold  the  de- 
fendant liable. 

If  the  Jury  believe,  from  the  evidence,  that  at  all  times,  after 
the  note  came  due,  the  institution  of  a  suit,  by  the  plaintiff 
against  the  maker,  would  have  been  unavailing  to  collect  the 
amount  of  said  note,  or  any  part  of  it,  then  the  Jury  should 
find, for  the  plaintiff. 

If  the  Jury  believe,  from  the  evidence,  that  at  the  time  when 
the  note  fell  due,  the  maker  was  notoriously  insolvent,  and  has 
60  continued  up  to  the  time  of  the  commencement  of  this  suit) 
and  that  the  prosecution  of  a  suit  against  him  would  have 
been  unavailing  to  obtain  the  amount  due  on  the  note,  or  any 
part  thereof,  the  Jury  should  find  for  the  plaintiff. 

§  21.  Execution  Returned — Xo  Property  Fonnd. — The  court 
instructs  the  jury,  that  the  return,  by  a  constable,  of  an  execu- 
tion, issued  against  the  maker  of  the  note,  unsatisfied,  or  no 
property  found,  is  proper  evidence  to  be  considered  by  the 
Jury,  with  all  the  other  evidence  in  tlie  case,  as  tending  to 
show  that  the  defendant  in  the  execution  had  no  personal 


NEGOTIABLE    INSTRIIMENTS.  439 

property,  subject  to  execution,  while  tlie  execution  was  in  the 
hands  of  the  officer,  nor  at  the  time  of  such  return. 

The  execution  returned,  no  property  found,  by  the  sheriff  of 
this  county,  is  proper  evidence  to  be  considered  by  the  jury, 
with  all  the  other  evidence  in  the  case,  as  tending  to  show  that 
the  maker  of  the  note  had  no  personal  or  real  property  in  this 
county,  subject  to  execution,  during  the  time  the  sheriff  held 
such  execution,  nor  at  the  time  of  said  return. 

§  22.     Insolvency   may  be  Proved    by    Other  Evidence. — The 

court  further  instructs  the  jury,  that  the  fact  that  a  suit  against 
the  maker  would  have  been  unavailing,  may  be  proved  by  any 
other  legal  testimony,  as  well  as  by  the  return  of  an  execution 
against  him  unsatisfied.  To  entitle  the  plaintiff  to  recover,  it 
is  only  necessary  for  the  jury  to  believe,  from  the  evidence, 
that  such  suit  would  have  been  unavailing.  2  Pars,  on  N.  & 
B.,  142;  J2oherts  vs.  IlasMl,  20  111.,  59. 

§  23.  Return  of  the  Officer  not  Conclusive. — The  court  in- 
structs the  jury,  that  the  executions,  introduced  in  evidence 
with  the  returns  thereon  indorsed  of  no  property  found,  ai'e 
not  alone  conclusive  evidence  that  the  maker  of  the  note  was 
at  the  time  insolvent,  or  that  due  diligence  against  him  would 
have  been  unavailing.     Roljerts  vs.  Haskell^  20  111.,  59. 

§  24.  Execution  from  Justice,  no  Evidence  R3garding  Real 
Estate. — The  jury  are  further  instructed,  that  the  return  of  an 
officer,  of  no  property  found,  on  an  execution  issued  by  a 
justice  of  the  peace,  is  no  evidence  that  the  defendant  in  the 
execution  did  not  have  real  estate  in  the  county,  liable  to  exe- 
cution, at  the  date  of  such  return. 

§  25.  Possession  of  Personal  Property  Evidence  of  Ownership. 
— The  court  instructs  the  jury,  that  when  one  person  sells  per- 
sonal property  to  another,  and  retains  possession  of  it,  the 
property  would  be  subject  to  \Qy^  under  an  execution  against 
the  seller,  so  long  as  it  remains  in  his  possession,  such  a  sale 
being,  in  law,  fraudulent,  as  against  subsequent  purchasers 
in  good  faith,  and  execution  creditors  of  the  seller.  Bump  on 
Fraud.  Cor..,  60. 


440  NEGOTIABLE    INSTEUilEKTS. 

If  tlie  jnry  believe,  from  the  evidence,  that  A.  B.,  the 
maker  of  the  note  in  question,  had  in  his  possession  property 
subject  to  execution,  as  explained  in  these  instructions,  suffi- 
cient in  value  to  liave  p>aid  the  notes,  at  any  time  after  a  judg- 
ment might  have  been  obtained  against  him,  by  tlie  use  of 
reasonable  diligence,  and  before  the  commencement  of  this 
suit,  then  the  jury  should  find  for  the  defendant. 

The  possession  of  personal  property  is  jpriina  facie  evi- 
dence of  ownership;  and  in  tliis  case,  if  the  jury  believe,  from 
the  evidence,  that  after  the  maturity  of  the  note,  and  after  a 
judgment  might  have  been  obtained  thereon  against  the  maker, 
and  before  the  commencement  of  this  suit,  A.  B.,  the  maker 
of  the  note,  was  in  possession  of  personal  property,  sufficient 
in  value  to  have  paid  the  note,  over  and  above  his  propei-ty 
exempt  from  execution,  then  it  was  the  duty  of  the  plaintilf 
to  use  all  reasonable  diligence  to  make  the  debt  out  of  the 
maker  of  the  note,  by  getting  a  judgment  and  levying  an  exe- 
cution on  such  property,  and  trying  the  tit'e  to  the  same,  if  it 
was  claimed  by  others;  and  if  the  jury  believe,  from  the  evi- 
dence, that  tiie  plaintiff  did  not  do  so,  and  that  on  this  trial  he 
lias  failed  to  overcome  or  remove  the  presumption  of  owner- 
ship arising  from  such  possession,  by  a  preponderance  of  evi- 
dence, then  the  jury  should  find  for  the  defendant. 

If  the  jury  believe,  from  the  evidence,  that  at,  or  about,  the 
time  the  note  in  question  became  due,  and  shortly  afterwards, 
the  maker  had  ])roperty  in  his  possession,  not  exempt  from  ex- 
ecution, as  exj)]ained  in  these  instructions,  sufficient  to  have 
paid  the  said  note,  or  any  considerable  part  of  it,  then  the  pre- 
sumption of  law  is,  that  such  property  belonged  to  him,  and 
that  by  the  use  of  due  diligence  in  the  institution  and  prosecu- 
tion of  a  suit  against  the  maker,  the  amount  of  the  note,  or  a 
"|iart  of  it,  could  have  been  made  out  of  the  maker;  and  the 
burden  of  proof  is  on  the  plaintiff  to  show,  by  a  preponder- 
ance of  the  evidence,  that  such  property  did  not  belong  to  the 
said  S.  M.,  or  that,  for  some  reason,  it  was  not  available  for  the 
payment  of  said  note. 

To  render  the  assignor  of  a  note  liable  thereon,  tlie  holder 
must  have  used  due  diligence  to  collect  it,  by  the  institution 
or  prosecution  of  a  suit  against  the  maker,  unless  it  appears, 
by  a  preponderance  of  the  evidence,  that  the  institution  oi 
such  suit  would  have  been  una  vail  ins;. 


NEGOTIABLE    IKSTKUMENTS.  441 

To  excuse  tlie  holder  of  a  note  from  the  use  of  diligence  to 
collect  it  of  the  maker,  it  is  not  sufficient  to  show  that  the 
maker  had  no  visible  property  in  his  hands,  or  possession;  it 
must  be  further  proved,  by  a  preponderance  of  evidence,  that 
he  ai)parently  had  no  means  with  which  to  pay  the  note,  or 
was  so  insolvent  as  to  be  unable  to  pay  it. 

The  court  instructs  the  jury,  that,  even  though  they  should 
believe,  from  the  evidence,  that  at  the  time  the  note  fell  due, 
the  maker,  S.  M.,  was  insolvent,  still,  if  the  jury  should  fur- 
ther believe,  from  the  evidence,  that  had  the  plaintiff  used 
due  diligence  in  the  collection  of  the  note,  he  could  have  col- 
lected the  same  from  the  maker,  then  the  jury  will  iind  for 
the  defendant. 

If  the  jury  believe,  from  the  evidence,  that  after  a  judg- 
ment might  have  been  obtained  against  the  maker  of  the 
note,  and  before  the  commencement  of  this  suit,  he  had  per- 
sonal property,  not  exempt  from  execution,  as  explained  in 
these  instructions,  sufficient  to  have  paid  the  debt,  or  some 
considerable  part  of  it,  such  state  of  facts  raises  a  presum]>tion 
that  the  note,  or  such  part  of  it,  could  hav^e  been  collected  of 
the  maker. 

If  the  jury  believe,  from  the  evidence,  that  S.  M.,  the 
maker  of  the  note,  was  in  possession  of,  and  had  under  his 
control,  personal  property  during,  etc.,  such  possession  is  pre- 
sumptive evidence  that  he  owned  said  property;  and  unless 
the  jury  believe,  from  the  evidence,  that  some  one  else  owned 
the  property,  the  presumption  would  be  that  it  really  belonged 
to  the  said  S.  M.     Eolerts  vs.  Haskell,  20  111.,  59. 

GUARANTOR   OF   PAY31ENT. 

Note. — There  is  much  diversity  of  opinion  among  the  courts  of  the 
different  states,  as  to  tlae  nature  of  the  contract  to  be  implied  from  the 
blank  indorsement  of  one  not  a  party  to  the  bill  or  note,  when  the  paper  is 
negotiable,  and  the  indorsement  is  made  before  its  delivery  to  the  payee. 
In  some  states,  one  indorsing  in  such  manner,  is  prima  fade,  regarded  as  a 
guaran  or;  in  others,  as  an  indorser;  and  in  others,  as  a  joint  promisor,  or 
surety.  But  in  most  of  the  states,  the  effect  of  such  an  indorsement  is  held 
to  depend  upon  the  intention  of  the  parties,  which  may  be  ascertained  by 
parol  evidence.     2  Pars,  on  N.  &  B.,  119. 

§  26.     Guarantor— Liability    Generally.  —  The    jury  are  in- 


4A:'2i  NEGOTIABLE    INSTRUMENTS. 

stnicted,  that  a  guarantor  of  a  promissory  note  cannot  be  made 
liable  beyond  tlie  express  terms  of  his  contj-act  or  imdertak- 
ing.  He  has  a  right  to  prescribe  the  terms  and  conditions 
upon  which  he  will  assume  a  responsibility,  and  no  other  per- 
son has  a  right  to  change  those  terms,  not  even  with  the 
design  of  diminishing  the  probabilities  of  ultimate  loss  by  the 
guarantor;  and  it  is  wholly  immaterial  whether  the  change  is 
advantageous  to  him  or  nut.  Ryan  vs.  The  Trustees^  14  111., 
20. 

§  27.  Name  of  Third  Person  on  Back  of  Note. — That  the 
signature  of  a  third  party,  in  blank,  on  the  back  of  a  note  in 
the  hands  of  the  payee,  is  presumptive  evidence  that  it  was 
placed  there  as  a  guaranty  at  the  time  of  the  execution  of  the 
note. 

If  the  jury  believe,  frorn  the  evidence,  that  the  defendant 
wrote  his  name  on  the  back  of  the  note  in  question  before  it 
was  delivered  to  the  paj'ce,  then  the  presumption  of  law  is, 
that  he  indorsed  the  note  as  a  guarantor  of  the  payment  of  the 
same,  and  in  such  case  the  defendant  would  become  liable  to 
pay  the  note  at  maturity,  if  it  was  not  then  paid  by  the  maker  ; 
unless  the  jury  further  believe,  from  the  evidence,  that  it  was 
expressly  agreed  and  understood  by  the  parties  to  the  note, 
when  the  defendant  indorsed  it,  that  he  did  not  indorse  it  as 
guarantor  of  the  payment. 

That  where  the  name  of  a  person,  not  the  payee  of  a  note,  is 
indorsed  on  it,  before  delivery,  in  the  absence  of  evidence  to 
the  contrai-y,  he  indorses  it  as  a  guarantor.  Glickauf  vs. 
Kaufmanii,  73  111.,  37. 

§  28.  Liable  until  Note  is  Paid.— That  the  liability  of  the 
guarantor  of  a  note  continues  until  the  note  is  paid  or  barred 
by  the  statute  of  limitations,  and  he  is  not  discharged  by  a 
mere  delay  in  bringing  suit  against  the  maker.  I^arkhurst  vs. 
Vail,  73  111.,  343. 

§  29.  Delay  wiU  not  Release. — That  mere  delay,  on  the  part 
of  a  creditor,  to  proceed  against  the  principal  debtor,  does  not 
discharge  the  surety;  all  that  the  surety  has  a  right  to  require 
is  that  the  creditor  should  do  no  aflirmative  act  to  its  preju- 


NEGOTIABLE    INSTRUMENTS.  44,3 

dice.      YiUars  vs.  Palmer,  67  111.,  204;  Edwd.  on  B.  &  K, 
292;  2  Pars,  on  K.  &  B.,  246. 

§  30.  Consideration  for  Gnaranty. — The  jury  are  instructed, 
as  a  matter  of  law,  that  to  render  a  contract  of  guaranty  bind- 
ing, it  must  be  upon  a  good  or  valuable  consideration.  If  a 
guaranty  is  placed  upon  the  back  of  a  note,  at  the  time  of  its 
execution  or  before  its  delivery  to  the  payee,  so  as  to  form  a 
part  of  the  original  transaction,  then  no  other  consideration 
need  be  shown. 

But  when  the  name  of  a  guarantor  is  written  on  the  back  of 
a  note,  after  its  delivery  to  the  payee,  then,  to  make  the  guar- 
antor h'able,  the  jury  must  believe,  from  the  evidence,  that 
there  was  some  new  considei'ation  for  such  guaranty.  Jodijn 
vs.  ColUnson,  26  111..  61;  2  Pars,  on  N.  &  B.,  126;  Ware  vs. 
Adams,  24  Me.,  177;   White  vs.  White,  30  Yt.,  338. 

If  a  third  party  signs  his  name,  as  a  guarantor,  upon  a 
promissory  note,  before  its  delivery  to  the  payee,  the  con- 
sideration of  the  note  will  be  ])resumed  to  be  the  consideration 
of  the  guaranty;  but  if  he  signs  it  after  delivery  to  the  payee, 
then  a  consideration  must  be  shown. 

If  the  jury  believe,  from  tlie  evidence,  that  the  defendant 
signed  his  name  on  the  back  of  the  note  in  question  at  the 
time  it  was  made,  and  before,  or  at  the  time,  it  was  delivered 
to  the  payee,  then  the  defendant  would  be  bound  by  his  con- 
tract of  guaranty,  without  any  consideration  therefor,  other 
than  the  consideration  of  the  note,  provided  the  jury  believe, 
from  the  evidence,  that  the  defendant  signed  the  note  in  the 
capacity  of  guarantor. 

§  31.    Release  of  Guarantor  or  Surety — Alteration  of  Note. — The 

law  is  that,  if  a  promissory  note  is  signed  by  a  party,  as  surety 
or  guarantor,  while  blank  as  to  (time  and  place  of  payment) 
and  in  this  condition  is  intrusted  to  the  principal  to  deliver 
to  the  payee,  and  the  principal  tills  up  these  blanks  differently 
from  what  had  been  agreed  upon,  then  the  surety  or  guaran- 
tor makes  the  principal  his  agent  for  tilling  such  blanks,  and 
he  will  be  bound  by  the  note  as  thus  filled  up.  Gottrupt  vs. 
Williamson;  61  Ind.,  599. 
The   law   is,  that   if   a  party  to    a   negotiable   instrument. 


444  NEGOTIABLE    INSTKUMENTS. 

intrust  it  to  the  custody  of  another  with  blanks  not  filled  up, 
whether  it  be  for  the  accommodation  of  the  person  to  whom 
it  is  intrusted,  or  to  be  used  for  his  own  benefit,  the  instru- 
ment carries  on  its  face  an  implied  authority  to  fill  up  the 
blanks  and  perfect  the  instrument.  As  between  such  party 
and  an  innocent  third  party,  the  person  to  whom  the  note 
was  intrusted,  must  be  deemed  to  be  the  agent  of  the  party 
who  committed  the  instrument  to  his  custody.  Bank  of  P. 
vs.  JS'eal,  22  How.,  96. 

If  the  jury  believe,  from  the  evidence,  that  the  name  of 
C.  H.  was  placed  on  the  note  in  suit  after  the  execution  of 
the  guaranty,  then  the  burden  of  proving,  by  a  preponderance 
of  evidence,  that  said  name  was  placed  upon  said  note  with 
the  knowledge  and  consent  of  the  defendant,  is  upon  the  plaint- 
iff, and  if  the  evidence,  upon  this  point,  is  equally  balanced,  the 
jury  nmst  find  for  the  defendant. 

Whether  the  adding  of  the  name  of  C.  H.  to  the  note,  after 
the  execution  of  the  guaranty,  was  a  benefit  or  an  injury  to  the 
guarantor,  is  not  a  subject  of  inquiry  for  the  jury — the  only 
question  for  them  is,  was  it  done  after  the  guaranty  was  writ- 
ten, and,  if  yes,  was  it  done  with  or  without  the  consent  of 
the  defendant;  and 'if  the  jury  believe,  from  the  evidence, 
that  it  was  so  dune,  without  his  consent,  this  would  render  his 
guaranty  void,  although  such  signing  may  have  been  a  benefit 
to  the  defendant. 

§  32.  Release  of  Guarantor — Extending  Time. — The  court  in- 
structs the  jury,  that  a  valid  agreement  between  the  payee  or 
holder  and  the  principal  maker  of  a  promissory  note,  for  an 
extension  of  the  time  of  payment  of  the  note  for  a  definite 
and  fixed  period  of  time,  after  its  maturity,  will  release  the 
guarantor  {or  surety),  unless  he  consents  to  the  agreement  at 
the  time  it  is  made,  or  afterwards  ratifies  it.  Edwd.  on  B.  & 
X.,  29J;  2  Pars,  on  N.  &  B  ,  245;  Danforth  vs.  Simple,  73 
111.,  170;  Tracey  vs.  Quillon  et  al.^  65  Ind.,  249;  Barron  vs. 
Cady,  40  Mich.,  259;  Kittle  vs.  Wilson,  7  Neb.,  76. 

If  you  believe,  from  the  evidence  in  this  case,  that  tlifi 
defendant  executed  the  guaranty  on  the  note  before  its  deliv- 
ery to  the  payee,  and  if  you  further  believe,  that  at  the  time 
he  so  executed  the  said  guaranty,  it  was  understood  and  agreed 


NEGOTIAIJLE    INSTKUMENTS.  4i5 

by  him,  tliat  the  name  of  C.  II.  should  l)e  added  to  tlie  note 
as  one  of  the  makers  thereof  before  the  delivery  of  the  same, 
and  if  you  further  believe,  from  the  evidence,  that  the  name 
of  C.  H.  was  so  added,  in  pursuance  of  said  agreement,  and 
understanding  of  the  defendant,  then  the  defendant  is  liable 
upon  the  guaranty,  and  you  should  find  for  the  plaintiff,  and 
assess  liis  damages  at  such  sum,  as  you  believe,  from  the  evi- 
dence, is  due  upon  the  note. 

An  agreement  to  extend  the  time  of  payment  of  a  nofe, 
after  its  maturity,  made  between  tlie  Jiokler  and  the  princijial 
maker,  to  have  the  effect  to  release  the  indorser.  must  bo  a 
valid  agreement,  ujion  a  sufficient  consideration,  and  one  that 
the  maker  could  enforce  as  against  the  payee  or  holder  of  the 
note.  An  agreement  to  continue  to  pay  usury  {or  an  agrce- 
ment  to  continue  to  pay  interest  at  the  rate  mentioned  in  the 
note')  would  not  be  such  an  agi'eement,  and  it  would  not  release 
the  indorser.  Stewart  vs.  ParJxer,  55  Ga.,  656;  White  vs. 
Whitne^J,  51  Ind.,  124;  Ilyersvs.  First  Nat.  ^/T'.,  78  111.,  257; 
Weed  &  Co.  vs.  Oberreich,  38  Wis.,  325;  Facocett  vs.  Fresh- 
water, 31  Ohio  St.,  637. 

A  contract  to  extend  the  time  of  payment  on  a  note,  in  con- 
sideration of  money  actually  paid,  is  a  binding  contract,  and 
releases  the  surety  on  the  note,  if  made  without  his  knowledge 
or  consent,  whether  the  money  so  paid  be  regarded  as  usury 
or  not. 

The  contract  of  a  surety  is  construed  strictly  in  his  favor; 
and  he  cannot  be  held  responsible,  beyond  the  precise  terms  of 
his  contract;  and  any  binding  contract  by  which  the  holder  of 
a  note  agrees  to  give  additional  time  to  the  maker,  without 
the  assent  of  the  guarantor,  will  release  him,  and  this  whether 
the  contract  is  made  before  or  after  the  maturity  of  the  note. 

In  this  case  the  defendant  A.  J3.  is  sued  as  an  indorser  or 
guarantor  of  the  note  in  question,  and  if  the  jury  believe,  from 
the  evidence,  that  at  or  about  the  time  the  note  became  due, 
the  plaintiff',  without  the  knowledge  or  consent  of  the  defend- 
ant, made  an  agreement  with  the  maker  of  the  said  note  to 
extend  the  time  of  ])ayment  of  the  same  for  the  jieriod  of, 
etc.,  provided  the  maker  of  the  said  note  would  pay  interest 
thereon  in  advance  for  such  extension,  at  the  rate  of,  etc.,  and 
that,  in  pursuance  of  such  agreement,  such  advance  intei-est 


446  NEGOTIABLE    INSTECIHENTS. 

was  then  and  there  paid,  then  such  agreement  to  extend  the 
time  of  ]iayment  of  said  note  would  release  the  defendant 
from  all  liability  thereon.  Randolph  vs.  Flemming^  59  Ga., 
776. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
A.  B.  signed  the  note  in  question  merely  as  surety  and  for  the 
accommodation  of  the  other  makers  of  said  note,  and  that 
this  fact  was  known  to  the  plaintiff  when  the  note  was  given, 
and  that  at  or  about  the  time  that  the  note  came  due,  the 
plaintiff,  without  the  knowledge  or  consent  of  said  A,  B., 
made  an  agreement  with  the  other  makers  of  said  note  to  ex- 
tend the  time  of  payment  of  the  same  for  the  period  of  (sixty 
days)j  in  consideration  that  such  other  makers  of  said  note 
would  pay  interest  thereon,  in  advance,  for  such  extension,  at 
the  rate  of,  etc.,  and  that  in  pursuance  of  such  agreement 
such  advance  interest  was  then  and  there  ]:)aid,  then  such 
agreement  to  extend  the  time  of  payment  of  said  note  would 
release  the  defendant  A.  B.  from  all  liability  thereon.  Faio- 
cett  vs.  Freshwater^  31  Ohio  St.,  637;  Wi/ine  vs.  Colorado 
Springs  Co.,  3  Col.,  155. 

§  33.  Siil)?eT[uent  Promise  fo  Pay. — The  court  instructs  the 
jury,  as  a  matter  of  law,  that  a  promise,  by  the  indorser  of  a 
note,  to  pay  it,  made  after  the  maturity  of  the  note,  and  with 
the  knowledge,  on  the  part  of  the  promisor,  of  all  the  material 
facts  relating  to  the  non-payment  of  the  note  by  tlie  makei-, 
amounts  to  a  waiver  of  proof  of  the  insolvency  of  the  maker, 
and  of  the  necessity  of  using  diligence  to  collect  the  same  by 
the  institution  and  ])rosecution  of  a  suit  against  him.  And,  in 
this  case,  if  the  jury  believe,  from  the  evidence,  that  since  the 
note  became  due,  the  defendant,  with  full  knowledge  of  all 
the  facts  relating  to  the  liability  and  responsibility  of  the 
maker,  promised  the  plaintiff  to  pay  the  note,  then  the  jury 
should  find  for  the  plaintiff,  regardless  of  the  insolvency  of  the 
maker.  1  Pars,  on  K  &  B.,  584;  Edwd.  on  B.  &  K,  650; 
Tehhetts  vs.  Dowd,  23  Wend.,  379;  Hughes  vs.  Bowen,  15  la., 
446. 

That  the  rule  of  law  is,  that  when  the  holder  of  a  promissory 
note  is  guilty  of  such  laches  as  will  release  an  indorser,  and  the 
indorser  afterwards  promises  to  pay  the  note,  with  full  kuowl- 


NEGOTIABLE    INSTKUMENTS.  44:7 

cdoTQ  of  the  facts,  Avlucli  would  operate  to  discharge  him,  then 
the  indorser  will  still  be  liable  upon  his  indorsement.  Whether 
the  indorser,  in  such  case,  knows  or  does  not  know  that  he  is 
released  from  liability,  as  a  matter  of  law,  makes  no  difference; 
it  is  enough  if  he  knows  the  facts,  and  makes  the  promise. 
Edwd.  on  B.  &  N.,  651;   TeUbeits  vs.  Dowd,  23  Wend.,  379. 

If  the  jury  believe,  from  the  evidence,  that  since  the  note 
sued  on  became  due,  the  defendant,  with  full  knowledge  of  all 
the  facts  relating  to  the  non-payment  of  the  note  by  the  maker, 
has  promised  to  pay  it,  then  the  law  presumes  that  the  maker  of 
the  note  was  insolvent  at  the  time  the  note  became  due,  and 
that  a  suit  against  him  would  have  been  unavailing. 

If  the  jury  believe,  from  the  evidence,  that  the  maker  of 
the  note  was  solvent  at  and  since  its  maturity,  and  that  the 
defendant  was  released  from  his  liability  thereun  as  indorser, 
by  the  failure  of  the  plaintiff  to  sue  the  maker,  still,  if  the 
jur}'  believe,  from  the  evidence,  that  the  defendant,  with  full 
knowledge  of  all  these  facts,  afterwards  promised  to  pay  it, 
then  his  antecedent  liability  therefor  is,  in  law,  a  sufficient 
consideration  to  support  his  promise  to  pay  the  same. 

When  the  principal  maker  and  the  holder  of  the  note  agree, 
for  a  valuable  consideration,  to  extend  the  time  of  payment  of 
the  note,  without  the  knowledge  or  consent  of  the  surety  or 
guarantor,  such  an  agreement  will  release  the  surety  or  guaran- 
tor; but  if  the  surety  subsequently  promises  to  pay  the  note, 
with  knowledge,  at  the  time,  of  such  previous  extension,  this 
will  be  a  waiver  of  any  defense  which  he  might  have  had  by 
reason  of  the  extension. 

INDOKSEK. 

§  34.  Demand  of  Payment  and  Notice, — The  jury  are  in- 
structed, that  in  order  to  hold  an  indorser  of  a  promissory 
note  upon  his  indorsement,  the  law  requires  the  holder  to  pre- 
sent the  note  to  the  maker  for  payment,  and  if  payment  is 
refused,  to  immediately  notify  the  indorser.  Whether  in  this 
case  the  plaintiff  did,  etc.,  present  the  said  note  for  payment 
and  immediately  give  notice  of  non-payment  to  the  indorser, 
are  questions  of  fact  to  be  determined  by  the  jur3\ 

As  a  matter  of  law,  if  the  holder  of  negotiable  paper  neg- 


448  NEGOTIABLE    INS'IKUMENTS. 

]ects  to  have  it  protested  for  non-payment  by  the  maker,  ho 
thereby  makes  the  paper  his  own  and  releases  the  indorser; 
and  it  makes  no  difference  whether  the  maker  was  insolvent 
at  the  time  the  note  came  due,  or  that  the  indorser  will  sus- 
tain no  injury  from  want  of  notice  of  non-payment  by  the 
maker.      Whitfen  vs.  TTW^A?!,  34  Mich.,  92. 

Demand  of  payment  from  the  maker  and  notice  of  non- 
payment of  a  promissory  note  may  be  waived  by  the  indorser 
bv  any  act  of  his  calculated  to  put  the  holder  off  his  guard 
and  prevent  him  from  treating  tlie  note  as  he  otherwise  would 
have  done  in  regai'd  to  such  demand  and  notice,  and  in  this 
case,  if  the  jury  believe,  from  the  evidence,  that  shortly  be- 
fore or  abont  the  time  the  note  came  due,  plaintiff  saw  the 
defendant  and  spoke  to  him  in  reference  to  the  payment  of 
the  note,  and  that  defendant  then  stated  (it's  all  right,  I  in- 
dorsed the  note  expecting  to  pay  it  when  due,  and  will  call  in 
and  see  about  it),  this  would  amount  to  a  waiver  of  a  demand 
on  the  maker  for  payment  and  of  notice  to  the  defendant  of 
non-payment.  Edward  on  P.  Notes,  633;  Love  vs.  Vl?iing,  7 
Met.,  212;  Bale  \s.  Danfort/i,  46  "Wis.,  554. 

Any  conduct  on  the  part  of  an  indorser,  towards  the  holder 
of  negotiable  paper,  calculated  to  put  a  person  of  reasonable 
prudence  off  his  guard  and  to  induce  him  to  omit  demand  of 
payment  from  the  maker  or  to  give  notice  of  the  dishonor  of 
the  paper,  will  dispense  with  the  necessity  for  taking  these 
steps.  And  in  this  case,  if  the  jury  believe,  from  the  evi- 
dence, that  the  defendant  shortly  before,  and  about  the  time 
the  note  b.  came  due  (requested  the  plaintiff  not  to  ]:)rotest  the 
note)  or  (that  he  said  to  the  plaintiff  that  arrangement  for  the 
payment  of  the  note  was  about  being  made,  and  to  hold  on, 
etc.),  this  would  amount  to  a  waiver  of  demand  on  the  maker, 
for  the  payment  of  the  note  and  of  notice  of  non-p.ayment. 
Bof/dvs.  Bank,  32  Ohio  St.,  520;  1  Pars,  on  N.  &  Bills,  582- 
592;  2  Daniel's  Neg.  Inst.,  Sec  1103. 

§  35.  Failure  or  Want  of  Considoration — Burden  of  Proof. — The 
court  instructs  the  jury,  that  under  the  laws  of  this  state,  the 
note  offered  in  evidence  in  this  suit  isj^rim.a  facie  evidence 
of  an  honest  indebtedness  owing  from  the  maker  to  the  ]iayee 
of  the  note,  at  the  time  it  was  made  and  delivered;  and,  unless 


NEGOTIABLE    INSTRUMENTS.  419 

the  defendant  has  established,  by  a  preiionderance  of  evidence, 
that  the  note  was  given  without  consideration  (or  that  the 
consideration  has  failed),  in  whole  or  in  part,  or  that  since  it 
was  made  and  delivered,  the  note,  or  some  part  thereof,  has 
been  paid,  then  the  jury  should  allow  the  plaintiff  in  this  suit 
the  amount  of  said  note,  principal  and  interest. 

That  when,  in  a  suit  upon  a  note,  the  defendant  sets  up  a 
failure  of  the  consideration  of  the  note,  either  in  whole  or  in 
part,  as  a  defense  to  the  action,  he  must  establish  such  failure, 
by  a  preponderance  of  the  evidence;  and,  in  this  suit,  if  the 
jury  find  that  the  defendant  has  not  proved  the  failure  of  the 
consideration,  as  alleged  in  his  pleas,  by  a  preponderance  of 
the  evidence,  the  jury  should  find  for  the  plaintiff  for  the  face 
of  the  note  and  interest. 

That  the  production  of  the  note  in  evidence  entitles  the 
-pWmtlfi,  j)ri??ia  facie,  to  recover  the  amount  which  appears  to 
be  due  by  the  face  of  the  note,  after  deducting  the  payments, 
if  any,  that  have  been  made  thereon;  and  the  burden  of  prov- 
ing any  defense  to  said  note  is  upon  the  defendant,  and  unless 
he  has  proved  his  alleged  defense,  by  a  preponderance  of  evi- 
dence, the  jury  should  disregard  such  defense  in  arriving  at 
their  verdict. 

§  36.  Consideration  Presumed,  Wlien. — The  court  instructs 
the  jury,  that  it  is  not  necessary,  in  the  first  instance,  for  the 
plaintiff  to  show  any  consideration  for  the  giving  of  said  note; 
the  note  itself  imports  consideration,  and  is  sufficient  to  entitle 
the  plaintiff  to  recover,  unless  the  jury  believe,  from  the  evi- 
dence, that  the  defendant  has  shown  some  good  and  valid 
defense  to  the  same,  and  the  burden  of  proof  is  on  him  to 
show  such  defense. 

The  jury  are  further  instructed,  that  the  law  implies  that 
every  promissory  note  that  is  made  and  delivered,  was  given 
for  a  good  and  valuable  consideration;  and,  in  this  case,  the 
burden  is  upon  the  defendant  to  prove,  by  a  preponderance 
of  the  evidence,  that  tlie  note  in  question  was  given  without 
consideration,  and  unless  he  has  done  this,  the  jury  should 
find  for  the  plaintiff. 

§  37.     Abandonment  of  Claim  a  Good   Consideration. — If   the 

29 


450  NEGOTIABLE    INSTRUMENTS. 

jury  believe,  from  the  evidence,  that  at  the  time  the  note  was 
given,  tlie  jDayee  of  the  note,  in  good  faith,  claimed  to  have  a 
lien  upon  said  lands,  for  the  payment  of  a  debt  due  him,  or 
some  riglit  or  interest  in  or  to  the  land,  and  that  the  note  was 
given  in  consideration  of  his  giving  up  and  abandoning  such 
claim,  and  that  he  did  thereupon  give  up  and  abandon  said 
claim,  that  would  be  a  sufEcient  consideration  for  the  note, 
and  it  would  not  matter,  in  such  case,  whether  his  claim  was 
a  valid  one  in  law  or  not.  1  Chitty  on  Con.,  29;  Illndert  vs. 
SeJmeider,  4  111.  App.,  203. 

§  38.  Disimted  Claims  must  be  Sustainable. — The  jury  are  in- 
structed, that  to  render  the  forbearance  of  a  claim,  or  an 
agreement  not  to  enforce  an  alleged  claim,  a  sufficient  consid- 
eration for  a  promissory  note,  it  is  essential  that  the  claim  it- 
self, if  well  founded,  be  sustainable,  either  at  law  or  in  equity, 
in  favor  of  the  person  for  whose  benefit  the  note  is  given; 
and  the  court  instructs  the  jury  that  a  claim  based  upon  the 
settlement  of  a  criminal  charge  cannot  be  sustained,  either  at 
law  or  in  equity,  and  if  the  jury  believe,  from  the  evidence, 
that  the  note  in  question  was  given  in  settlement  of  a  criminal 
charge,  then  it  is  without  consideration.  Heaps  vs.  Dunham, 
95  111.,  583;  Parsoas  vs.  Pendleton,  etc.,  59  Ind.,  36;  Tucl'er 
vs.  Rank,  42  la.,  80;  O.  d:  C.  Rd.  Go.  vs.  Potter,  5  Oxag,, 
228. 

§  39.  Want  of  Consideration. — The  court  instructs  the  jury, 
that  the  want  of  a  consideration  destroys  the  validity  of  a  note 
in  the  hands  of  the  payee,  or  in  the  hands  of  any  one  charge- 
able with  notice  of  a  want  of  consideration,  and  this  without 
regard  to  the  good  faith  of  the  transaction  in  which  the  note 
was  given;  and,  in  this  case,  if  the  jury  believe,  from  the  evi- 
dence, that  the  note  was  given  without  any  good  or  valuable 
consideration,  they  should  find  for  the  defendant;  provided, 
that  the  jury  further  believe,  from  the  evidence,  that  the  note 
was  assigned  to  the  plaintiff  after  its  maturity,  or  that  he  had 
notice  of  such  want  of  consideration  when  it  was  assigned  to 
him. 

If  the  jury  believe,  from  the  evidence,  that  the  note  in  ques- 
tion was  given  without  a  good  or  valuable  consideration,  then, 


NEGOTIABLE   INSTRUMENTS.  451 

although  the  jury  may  further  believe,  from  the  evidence,  that 
the  plaintiff  has  promised  to  pay  the  note  since  it  was  made 
and  delivered,  such  a  promise  would  not  be  binding  on  the 
defendant,  unless  it  was  made  upon  some  new  and  valuable 
consideration;  unless  the  jury  further  believe,  from  the  evi- 
dence, that  the  note  was  assigned  to  the  plaintiff  before  its 
maturity,  and  that  he  had  no  notice  of  such  want  of  considera- 
tion when  he  purchased  the  note. 

§  40.  Note  Obtained  by  Fraudulent  Representation. — As  re- 
gards the  defense  set  up  in  this  case,  that  the  note  was  obtained 
by  false  and  fraudulent  representations,  the  court  instructs  the 
jury,  that  to  defeat  a  recovery  on  that  ground,  the  jury  must 
believe,  from  the  evidence,  that  the  alleged  representations 
were  made,  as  charged;  that  they  were  false  when  they  were 
made;  that  the  said  A.  B.  then  knew  them  to  be  false;  that 
they  were  such  as  a  man  of  ordinary  caution  and  prudence 
would  be  likely  to  rely  upon;  that  the  said  defendant  did  rely 
upon  the  truth  of  them,  and  was  induced  thereby  to  give  the 
note  in  question,  and  that  he  has  been,  in  some  manner,  injured 
by  such  representations. 

§  41.  Representations  must  be  Material. — If  the  jury  believe, 
from  the  evidence,  that  the  defendant  got  for  his  note  all  that 
he  expected  to  get,  so  far  as  relates  to  quantity  and  value,  in 
the  transaction  in  which  the  note  was  given,  then  he  is  liable 
upon  the  note,  although  the  said  A.  B.  may  have  deceived  him 
in  relation  to  his  own  interest  in  the  property,  or  in  any  other 
matter  not  affecting  the  value  of  the  property  or  of  the  con- 
sideration of  the  note. 

§  42.  Obtained  by  Fraud  and  Circumvention. — If  the  jury  be- 
lieve, from  the  evidence,  that  the  defendant  was  induced  by 
the  plaintiff,  or  by  any  one  acting  for  him,  to  sign  the  note 
offered  in  evidence  in  this  case,  by  fraud  or  circumvention,  in 
manner  and  form  as  alleged  in  defendant's  plea,  then  the  said 
note  is  void  as  to  the  defendant,  and  he  is  not  liable  thereon. 

If  the  jury  believe,  from  the  evidence,  that  the  said  A.  B. 
was  the  agent  for  the  plaintiff,  and  that  he  obtained  said  note 
from  the  defendant  as  such  agent,  and  further,  that  when  dc- 


452  NEGOTIABLE    INSTErilENTS. 

fendant  signed  the  note  he  was  unahle  to  read  writing  readily, 
and  requested  the  said  A.  B.  to  read  the  same  to  him  [or  the 
said  A.  B.  offered  to  read  the  same  to  him),  and  did  read  it 
to  the  defendant,  and  if  the  jury  further  believe,  from  the 
evidence,  that  the  said  A.  B.,  when  reading  said  note,  niisread 
the  same  in  any  material  part,  and  thus  misled  the  defendant, 
and  induced  iiim  to  sign  said  note,  when  he  would  not  other- 
wise have  done  so,  then  these  facts  would  constitute  fi'aud 
and  circumvent'on,  within  the  meaning  of  the  law,  and  the 
note  is  not  binding  upon  the  defendant,  but  is  wholl}'-  void  as 
to  him.     Edwd.  on  B.  &  K,  325;  Chitty  on  Bills,  73. 

The  jury  are  instructed,  that  the  question  for  their  determi- 
nation in  this  case  is  not  whether  the  note  was  given  for  [a 
jpatent  right),  but  the  real  question  is,  was  there  any  trick, 
artifice  or  fraud  practiced  upon  the  defendant  to  procure  his 
signature.  And  unless  the  defendant  has  shown,  by  a  predon- 
derance  of  evidence,  on  this  trial,  that  his  signature  was  ob- 
tained to  said  note  by  some  trick,  artifice  or  fraud,  so  that  he 
signed  the  same  without  knowing  that  he  was  signing  a  note, 
then  the  jury  should  find  for  the  plaintiff  upon  that  issue. 

The  defense  set  up  by  the  defendant  in  this  case  is,  that  he 
did  not  make  the  note,  and  also  that  his  signature  thereto  was 
obtained  by  fraud  and  circumvention.  As  regards  the  latter 
of  these  defenses,  the  jury  are  instructed  that  it  is  wholly  im- 
material what  the  note  was  given  for,  or  what  deception  was 
practiced  on  him  in  relation  to  the  consideration  of  the  note; 
provided  the  jury  believe,  from  the  evidence,  that  the  defend- 
ant did  sign  the  note  in  fact,  and  know  that  he  was  signing 
the  note  when  he  did  so. 

§  43.  Fraud  and  Circumvention,  Void  by. — The  court  instructs 
the  jury,  that,  by  the  laws  of  this  state,  if  any  fraud  or  circum- 
vention be  used  in  obtaining  the  making  or  execution  of  a 
promissory  note,  such  note  will  be  absolutely  void  as  against 
the  maker,  whether  in  the  hands  of  the  party  committing  the 
fraud,  or  in  the  hands  of  any  assignee  of  the  instrument. 

The  court  instructs  the  jury,  that  in  a  suit  by  the  assignee 
of  a  promissory  note,  the  fact,  if  proved,  that  the  execution 
of  the  note  was  procured  by  fraud  or  circumvention,  is  a  good 
defense,  and  it  is  immaterial  whether  the  assignee  took  the 


NEGOTIAULE    IKSTKUMENTS.  453 

note  with  or  witliout  notice  of  sueli  defense;  provided,  tlie 
maker  used  reasonable  cai-e  and  caution  to  avoid  being  imposed 
upon.     Hewitt  vs.  Jones,  72  111.,  218. 

Tliat  if  a  person  is  induced,  through  a  fraud  practiced  upon 
him,  to  sign  a  promissory  note,  under  the  belief  that  it  is  an 
instrument  of  an  entirely  different  character,  and  he  is  guilty 
of  no  negligence  on  his  part,  the  note  will  be  void  in  whoseso- 
ever hands  it  may  be,  as  having  been  obtained  tlirough  fraud 
and  circumvention.  Iluhbard  vs.  Rankin,  71  111.,  129.  See 
Yan  Brunt  vs.  Langley,  85  111.,  281.  . 

In  this  state,  if  the  signature  of  a  person  is  obtained  to  a 
note  by  tlie  fraud  or  circumvention  of  the  payee  thereof,  or 
of  any  person  acting  for  him,  then  such  a  note  will  be  wholly 
void,  even  in  the  hands  of  a  l)07iajide  assignee  without  notice; 
provided,  it  appears,  from  the  evidence,  that  the  maker  of  the 
note  was  not  chargeable  with  any  want  of  reasonable  care  and 
caution  to  avoid  being  imposed  upon.  Griffiths  vs.  Kellogg, 
39  Wis.,  290. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
was  induced  to  execute  the  note  in  question  by  false  and  fraud- 
ulent re;  resentations  made  to  him,  regarding  the  character  of 
the  instrument  which  he  was  desired  to  sign,  so  that  he  was 
led  to  believe  the  p^aper  presented  was  a  wholly  different  in- 
strument, then  the  note  is  void  as  to  him,  and  the  plaintiff 
cannot  recover  thereon;  provided,  the  jury  further  believe, 
from  the  evidence,  that  the  defendant  was  not  chargeable  with 
any  negligence  which  contributed  to  the  deception.  DeCamp 
vs.  Hamrna,  29  Ohio  St.,  467:  Iluhbard  vs.  Ranhln,  71  111., 
129;  Gills  vs.  Linalurg,  22  Mich.,  473. 

§  44.     Fraud  in  the  Consideration  not   Sufficient. — The  court 

instructs  the  jury,  that  fraud  and  circumvention,  in  obtaining 
the  execution  of  a  note,  within  the  meaning  of  the  statute, 
is  not  a  fraud  which  relates  to  the  quality,  quantity,  value  or 
character  of  the  consideration  of  the  note.  It  means  some 
trick,  artifice  or  device,  by  means  of  which  a  jierson  is  induced 
to  give  the  note  in  question,  under  the  belief  that  he  is  giving 
an  instrument  of  a  different  character;  as  when  a  person  is 
induced  to  give  a  note  under  the  belief  that  it  is  a  receipt  (or 
is  induced  to  give  a  note  for  one  amount,  under  the  belief  that 


454:  NEGOTIALLE    INSTKUitENTS. 

it  is  for  a  difTerent  amount).     Latham  vs.  Smith,  45  111.,  25; 
Butler  vs.  Cams,  37  Wis.,  61. 

To  render  a  promissory  note  void  in  the  hands  of  a  })ona 
fide  assignee,  on  the  ground  of  fraud  and  circumvention,  the 
fraud  nnist  relate  to  the  execution  of  the  note  itself,  and  not 
to  the  consideration.  The  fraud  must  relate  to  the  nature  and 
character  of  the  instrument,  or  to  the  amount  or  other  terms 
of  the  note,  in  order  to  come  within  the  terms,  fraud  and  cir 
cnmvention,  in  procuring  the  execution  of  the  instrument. 

The  jnry  are  further  instructed,  that  in  tliis  suit  {pr  under 
the  plea  of  fraud  and  circujnvention,  etc.),  the  jury  have 
nothing  whatever  to  do  with  the  question,  whether  the  machine 
received  by  the  defendant  was  worth  much  or  little,  or  whether 
he  was  deceived  and  defrauded  in  the  consideration  of  the 
note.  So  far  as  the  question  of  {fraud,  etc.,)  is  concerned,  the 
only  question  for  the  jury  to  consider  is,  whether  the  defend- 
ant's signature  to  the  note  was  obtained  by  fraud  and  circum- 
vention— that  is,  by  some  fraudulent  trick  or  device. 

§  45.  Signing  without  Reading. — If  the  jury  believe,  from 
the  evidence,  that  the  defendant  did  sign  the  note,  and  fur- 
ther, that  he  was  induced,  by  the  representations  of  the  said 
A.  B.  regarding  the  contents  of  the  paper  thus  signed  by  him, 
not  to  read  it  over,  and  if  the  jury  further  believe,  from  the 
evidence,  that  in  relying  upon  such  representations,  the 
defendant  acted  as  the  great  mass  of  men,  in  his  station  in  life 
and  engaged  in  the  same  busines-,  would  have  acted,  and  that 
in  that  regard  he  used  ordinary  and  reasonable  care  and  cau- 
tion to  avoid  being  imposed  upon,  then  the  plaintiff,  as  regards 
the  question  of  fraud,  stands  in  precisely  the  same  position 
as  the  original  payee  would  have  stood,  if  suit  had  been 
brought  in  his  name. 

Though  the  jury  may  believe,  from  the  evidence,  that  the 
person  who  took  the  note  in  question,  practiced  a  fi-aud  upon 
the  defendant,  to  induce  him  to  give  the  note,  still,  if  the 
defendant  signed  the  same,  knowing  that  he  was  giving  such 
a  note  as  the  one  in  controversy,  this  is  not  what  the  law  means 
by  obtaining  the  execution  of  a  note  by  fraud  or  circumven- 
tion. 

§  46.     Mistake  as  to  Legal  Effect. — If  the  jury  believe,  from 


NEGOTIABLE    INSTRUMENTS.  4:00 

the  evidence,  that  the  defendant,  at  tlie  time  he  signed  the 
note  in  question,  was  mistaken  as  to  its  legal  effect,  still,  if  the 
jury  further  believe,  from  the  evidence,  that  he  did  sign  the 
note,  that  he  read  the  note  over,  and  knew  its  contents  at  the 
time  he  signed  it,  then  the  mistake,  on  his  part,  as  to  the 
legal  effect  of  the  note,  cannot  affect  the  plaintiff's  right  to 
recover  in  this  suit. 

§  47.  Reasonable  Care,  What. — The  jury  are  instructed,  that 
when  a  person  executes  a  note,  he  must  be  diligent  and  use 
all  reasonable  means  to  prevent  a  fraud  being  ])racticed  on 
him,  and  if  he  does  not  do  so,  he  will  be  liable  to  an  innocent 
purchaser  of  the  note,  before  maturity.  He  is  not  required 
to  use  every  possible  precaution,  bat  only  such  as  would  be 
expected  from  men  of  ordinary  prudence,  in  the  same  station 
of  life  and  of  the  same  general  business  experience. 

In  order  to  make  the  defense  of  fraud  and  circumvention ^ 
in  obtaining  the  execution  of  a  note,  available  against  an  inno- 
cent assignee  thereof,  before  maturity,  it  is  only  necessary  to 
show  that  the  maker  of  the  note  used  ordinary  care  and  cau- 
tion to  prevent  being  imposed  upon,  in  the  execution  of  the 
note,  and  that  the  execution  of  the  same  was  obtained  by 
fraud  and  circumvention. 

In  order  to  make  the  defense  of  fraud  and  circumvention, 
in  obtaining  the  execution  of  a  note,  available  against  such 
note,  in  the  hands  of  an  innocent  assignee,  before  maturity,  it 
is  not  necessary  that  the  maker  should  use  the  highest  degree 
of  care  and  caution,  to  avoid  being  imposed  upon;  it  is  only 
necessary  to  use  sa(;h  reasonable  caution  as  generally  governs 
the  conduct  of  a  majority  of  prudent  men. 

§  48.  3Iust  Use  Reasonable  Care  to  Avoid  Imposition. — That  a 
person,  before  executing  a  promissory  note,  should  use  all 
reasonable  and  ordinary  precautions  to  avoid  impositions,  and 
if  able  to  read  writing  readily,  he  should  examine  it  himself, 
and  if  not  able  to  read,  he  should  have  it  read  to  him,  by  some 
one  in  whom  he  has  confidence,  unless  some  trick  or  artifice 
is  used,  or  false  statement  made,  reasonably  calculated  to 
induce  him  to  neglect  such  ordinary  prudence.  Jioss  vs. 
Doland,  29  Ohio  St.,  473;  JSfebeclcer  vs.  Cutsinger,  48  Ind., 
436. 


456  NEGOTIABLE    IKSTECMENTS. 

Where  one  voluntarily  signs  a  negotiable  promissory  note, 
supposing  it  to  be  an  obligation  of  a  different  character,  but 
has  full  means  of  information  in  the  premises  and  neglects  to 
avail  himself  thereof,  relying  upon  the  re]iresentations  of  an- 
other, he  cannot  set  up  such  ignorance  and  mistake  against  an 
innocent  holder  for  value,  who  takes  it  before  maturity.  If, 
however,  his  signature  was  procured  through  artifice  or  fraud- 
ulent representations,  without  negligence  on  his  part  (under 
such  circumstances  that  reasonable  and  ordinary  care  would 
not  enable  him  to  discover  the  fraud  or  imposition),  then  the 
maker  is  not  liable  on  the  note.  DeCanip  vs.  Haimna,  29 
Ohio  St.,  467;  Mead  vs.  Manson,  60  111.,  49;  State  BanJc  vs. 
McCoy,  69  Penn.  St.,  204;  Douglas  vs.  Matting,  29  la.,  498. 

Although  the  jury  may  believe,  from  the  evidence,  that  a 
person  representing  himself  as  the  agent  of  A.  B.,  the  payee 
named  in  the  note  in  suit,  applied  to  the  defendant  to  become 
an  agent  of  the  said  A.  B.  for  the  sale  of  (seed  drills),  to  be 
manufactured  by  the  said  A.  B.,  and  that  it  was  agreed  be- 
tween said  agent  and  the  defendant  (that  defendant  should 
only  be  rerpiired  to  pay  an  agreed  share  of  the  money  col- 
lected by  him  from  such  sales,  etc.),  and  that  the  defendant 
signed  the  note  offered  in  evidence,  supposing,  at  the  time,  that 
he  was  only  signing  certain  papers  constituting  himself  such 
agent,  in  pui-suance  of  such  agreement,  and  that  he  was  de- 
ceived as  to  the  character  of  such  paper  by  the  false  and 
fraudulent  representations  of  said  agent  in  reference  thereto, 
still  the  defendant  will  be  liable  upon  said  note,  provided  you 
further  believe,  from  the  evidence,  that  the  defendant  was 
able  to  read  writing,  and  did  not  read  the  paper,  or  without 
unreasonable  efforts  in  that  behalf  might  have  learned  the  true 
character  of  the  paper,  bj^  procuring  the  same  to  be  read  to 
him  by  some  person  having  no  interest  in  deceiving  him ;  and 
also  that  the  plaintiff  took  the  note  in  the  ordinai-y  course  of 
business,  for  value  and  before  due,  and  without  any  notice  of 
the  fraud  practiced  upon  the  defendant.  Hoss  vs.  Dolan,  29 
Ohio  St.,  473. 

§  49.  Bxirden  of  Proof. — That  the  allegation  that  his  signature 
v/as  obtained  by  fraud  and  circumvention,  is  one  upon  which 
the  defendant  has  the  burden  of  proof  j  and  before  he  can 


NEGOTIABLE    INSTKUMENTS.  457 

derive  any  benefit  from  that  allegation,  lie  must  prove  the 
truth  of  it,  by  a  preponderance  of  evidence;  and  unless  lie 
has  done  so,  the  jury  should  find  for  the  plaintiff,  upon  that 
issue. 

The  jury  are  further  instructed,  that  when  a  person  sets  up 
fraud  and  circumvention,  to  defeat  a  recovery  on  a  note,  and 
supports  such  defense  by  his  own  testimony  aione,  and  the 
other  party  to  the  transaction,  by  his  testimony,  denies  the 
statements  of  the  defendant,  in  respect  to  such  fraud,  and 
both  parties  are  equally  credible,  have  equal  opportunities  for 
knowing,  and  testify  apparently  with  equal  fairness,  candor 
and  truthfulness,  and  neither  is  corroborated  by  other  evidence. 
or  by  other  facts  or  circumstances  shown  on  the  trial,  then 
the  defense  of  fraud  is  not  proven. 

The  court  instructs  the  jury,  that  if  they  believe,  from  the 
evidence,  that  the  defendant  signed  his  name  to  the  note, 
introduced  in  evidence,  then  the  note  will  entitle  the  plaintiff 
to  recover,  unless  the  defendant  has  established,  by  a  prepon- 
derance of  evidence,  that  the  signature  to  the  note  was  obtained 
by  fraud  or  circumvention. 

Although  the  jury  may  find,  from  the  evidence,  that  there 
was  an  agreement  between  the  agent  of  the  said  A.  B.  and  the 
defendant,  to  the  purport  and  effect  of  the  agreement  set 
out  in  the  last  instruction,  and  that  the  defendant,  by  the  false 
and  fraudulent  representations  of  the  said  agent,  was  induced 
to  affix  his  signature  to  a  printed  blank  which  would  be  in  the 
form  of  a  promissory  note  when  the  blanks  were  filled,  but 
without  any  intention  of  executing  a  promissory  note,  and  then 
delivered  the  said  paper  so  sign<3d  by  him  to  said  agent,  and 
gave  him  no  authority  to  till  said  blanks  or  to  write  anything 
over  his  signature,  still  the  defendant  would  be  liable  in  this 
case,  if  you  further  believe,  from  the  evidence,  that  the  agent, 
or  the  said  A.  B.,  afterwards  filled  the  blanks  in  the  form  in 
which  it  is  now  written,  and  that  the  plaintiff  took  the  note  in 
the  ordinary  course  of  business  for  value  and  before  due,  with- 
out any  notice  of  the  fraud  practiced  upon  defendant.  Hoss 
vs.  Doland,  29  Ohio  St.,  473. 

§  50.  Fraud  May  be  "Waived. — If  the  jury  believe,  from 
the  evidence,  that  after  the  giving  of  the  note  in  question  the 


■158  KEG0TIAT5LE    INSTEUMENTS. 

defendant  learned  all  the  facts  regarding,  etc.,  and  that  after 
discovering  such  facts,  and  at  or  about  the  time  the  note  came 
due,  he  requested  the  plaintiff  to  give  him  time  to  pay  it,  stat- 
ing that  he  would  pay  it,  and  that  the  plaintiff,  in  pursuance 
of  such  request,  did  give  him  additional  time  after  the  note 
came  due  in  which  to  pay  it,  then  the  defendant  thereby 
waived  the  alleged  fraud,  and  he  will  now  be  Hable  on  the 
note,  although  at  the  time  he  asked  for  time  to  pay  it  he  did 
not  know  that  the  facts,  now  set  up  as  a  defense,  would  make  a 
defense  in  law.  Rijidshoj)/  ys>.  Daman  et  al.^  28  Ohio  St., 
516. 

§  51.  Note  Stolen,  or  Wrongfully  Obtained. — If  the  jury  be- 
lieve, from  the  evidence,  that  the  defendant  signed  the  note 
in  question,  in  tliis  case,  knowing  that  it  was  a  note,  and  they 
also  believe,  from  the  evidence,  that  the  note  was  assigned  to 
the  plaintiff,  for  a  valuable  consideration,  before  the  maturity 
of  the  note,  in  the  regular  course  of  business,  and  that  the 
plaintiff,  at  the  time  of  such  assignment,  had  no  notice  that 
the  note  was  not  properly  put  into  circulation,  then  the  plaint- 
iff will  have  a  right  to  recover,  even  though  the  jury  may 
further  believe  that  the  note  was  obtained  from  the  maker  by 
fraud  {or  that  it  loas  stolen  from,  etc.,)  or  otherwise  wrongfully 
put  into  circulation.  Clark  vs.  Johnson,  54  111.,  296;  Barsen 
vs.  Huntington,  21  Mich.,  415. 

That,  although  the  jury  may  believe,  from  the  evidence 
that  the  note  in  question  was  lost  by  the  defendant  {or  stolen 
from  hhn),  or  otherwise  wrongfully  put  into  circulation,  still, 
if  the  jury  further  believe,  from  the  evidence,  that  the 
plaintiff  took  the  same,  in  the  regular  course  of  business,  in 
good  faith,  for  a  valuable  consideration,  and  before  maturity, 
and  without  any  knowledge  of  the  manner  in  Avhich  it  got  into 
circulation,  then  the  jilaintiff'  is  entitled  to  recover  on  the  note. 
Franldin,  etc.,  vs.  Ile'insman,  1  Mo.  App.,  336;  Shiphj  vs. 
Carroll,  45  111.,  285;  Marry  vs.  Lardner,  2  Wall.,  110;  Gava- 
gan  vs.  Bnjant,  83  111.,  376. 

The  court  instructs  the  jury,  that  in  order  to  defeat  the  title 
of  the  purchaser,  for  value,  before  maturity,  of  stolen  negoti- 
able promissory  notes,  the  circumstances  proved  must  be  such 
as  to  lead  the  jury  to  believe,  from  the  evidence,  that  the  pur- 


NEGOTIABLE    INSTEUMENT8.  459 

chase  was  made  in  bad  faith,  or  with  notice  of  the  want  of 
title  in  the  seller;  mere  proof  of  negligence  or  want  of  caution 
on  the  part  of  such  a  purchaser,  is  not  alone  sufficient  to  defeat 
his  title  or  right  to  recovery.  Duchess  Co.  Mutual  Ins.  Co. 
vs.  IlachfieUi.lZ  N.  Y.,  226. 

§  52.  Duress — Abnso  of  Criminal  Process. — The  court  in- 
structs the  jury,  that  if  they  believe,  from  the  evidence,  that 
the  note  sued  upon,  in  this  case,  was  obtained  from  the  de- 
fendant through  a  wrongful  perversion  or  abuse  of  criminal 
process,  as  explained  in  these  instructions,  then  such  note  is 
void  in  the  hands  of  the  payee,  or  in  the  hands  of  any  person 
taking  it  after  maturity,  or  with  notice  of  the  manner  in  which 
it  was  obtained.  Boiveti  vs.  Buck.,  2S  Yt.,  309 ;  Faij  vs 
Oailey,  6  Wis.,  42 ;  Cappell  vs.  Hall,  7  Wal.,  538 ;  Sc/iejik  vs. 
P/>elj)s,  et  al.,  6  Brad.  (111).,  612. 

If  the  jury  believe,  from  the  evidence,  that  L.,  the  payee  of 
the  note,  caused  criminal  process  to  be  issued  against  the  de- 
fendant, and  used  it  to  enforce  a  settlement  of  a  doubtful 
claim,  and  that  while  defendant  was  under  arrest,  under  such 
process,  the  said  L.  used  threats  against  the  defendant,  to  in- 
duce him  to  sign  the  note  in  controversy,  and  that  such  threats 
were  of  such  a  character,  and  made  under  such  circumstances, 
as  to  be  likely  to  terrify  a  man  of  ordinary  and  reasonable 
firmness,  and  that  under  the  influence  of  such  threats,  and 
while  under  such  arrest,  the  defendant  signed  the  notes,  then 
the  law  is  that  such  note  is  void,  etc. 

If  the  jury  believe,  from  the  evidenje,  that  one  of  tlie 
plaintiffs  swore  out  a  warrant  for  the  arrest  of  the  said  A.  B., 
upon  a  charge  of  (procuring  goods  of  the  plaintiffs  by  false 
pretenses)  and  caused  the  said  A.  B.  to  be  arrested  upon  said 
warrant  and  taken  to,  etc.,  for  the  purpose  of  getting  the  note 
out  of  the  defendant  or  otherwise  securing  an  indebtedness 
due  to  them,  and  that  they  did  by  this  means  procure  the  note 
in  question,  and  then  turned  the  said  A.  B.  loose  without  at- 
tempting further  to  prosecute  him  upon  the  criminal  charge, 
then  this  was  an  unwarranted  use  of  criminal  process  of  the 
state,  and  the  plaintiffs  cannot  recover  upon  a  note  so  procured, 
even  if  the  said  (A.  B.)  had  been  guilty  of  procuring  goods  of 
them  by  false  pretenses. 


460  NEGOTIABLE    INSTRUMENTS. 

The  jnry  are  further  instructed,  that  whether  or  not  the  pa:cl 
A.  B.  owed  tlie  plaintiff  for  goods,  or  whether  or  not  he  was 
guilty  of  (obtaining  goods  from  them  by  false  pretenses)  are 
questions  not  involved  in  this  suit  (so  far  as  regards  the  right  to 
recover  on  the  note).  The  only  question  for  the  jury  to  pass 
upon  in  connection  with  the  criminal  case,  is  whether  the  plaint- 
iff nsed  the  criminal  process  of  the  state,  n  )t  with  the  in- 
tention, in  good  faith,  of  prosecuting  the  criminal,  but  for  the 
purpose  of  securing  a  private  debt,  and  if  the  jury  believe, 
from  the  evidence,  that  it  was  used  for  the  latter  purpose,  and 
that  the  note  was  obtained  b}''  means  of  such  arrest,  then  the 
note  is  void,  and  it  cannot  be  enforced  in  their  hands. 

Note. — If  suit  is  brought  by  an  assignee  of  tiie  note,  qualify  these  instruc- 
tions to  meet  that  state  of  the  case. 

The  court  instructs  the  jury,  that  free  consent  is  of  the 
essence  of  every  contract,  and  if  there  be  compulsion  there 
is  no  consent;  and  moral  compulsion,  such  as tliat produced  by 
threats  to  inflict  great  bodily  harm,  as  well  as  that  produced 
by  unlawful  imprisonment,  is  regarded,  in  law,  as  sufficient  to 
destroy  free  agency. 

Threats  made  by  a  party  liaving  a  warrant  for  an  arrest,  and 
threats  to  execute  it,  or  threats  to  continue  a  prosecution  after 
an  arrest  under  the  warrant,  unless  the  demands  of  the  person 
making  the  threats  are  complied  with,  are  sufficient  to  avoid 
a  contract  entered  into  through  fear  induced  by  such  threats; 
provided,  the  claim  is  of  doubtful  validity,  or  is  disputed  by 
the  party  tlireatened. 

It  is  against  public  policy  that  criminal  process  should  be 
used  for  the  purpose  of  effecting  the  settlement  of  a  doubtful 
claim  ;  and,  in  this  case, if  the  jury  believe,  from  the  evidence, 
that  the  ]^laintiff  obtained  and  used  a  warrant  for  the  arrest  of 
the  defendant,  for  the  purpose  of  eifecting  a  settlement  of  a 
doubtful  claim  against  him,  and  thereby  obtained  the  notes  in 
question,  then  such  notes  are  void. 

If  the  jury  believe,  from  the  evidence,  that  the  execution 
of  the  notes  sued  upon  was  obtained  by  mrians  of  threats 
against  the  defendant,  as  stated  in  such  defendant's  ]:)lea,  and 
that  such  threats  were  of  such  a  chai-acter  as  to  be  likely 
to  terrify   a  man  of  ordinary  and   reasonable   firmness,  then 


NEGOTIABLE    INSTKUMENTS.  4G1 

duress  would  be  establisliedj  aud  the  notes  thus  obtained  arc 
void. 

§  53.  Lawful  Imprisonment  not  Duress. — The  jury  are  in- 
structed, that  a  lawful  imprisonment  is  not  such  duress  as 
will,  alone,  enable  a  party  to  avoid  a  note  made,  while  so 
imprisoned,  on  the  ground  of  duress. 

And,  in  this  case,  although  the  jury  may  believe,  from  the 
evidence,  that  the  notes  in  question  were  executed  and  deliv- 
ered while  the  defendant  was  under  arrest,  still,  if  the  jury 
further  believe,  from  the  evidence  and  under  the  instructions 
of  the  court,  that  such  arrest  was  legal,  then  such  arrest  alone 
will  not  render  the  said  notes  void.  Heaps  vs.  Dunham  et  al., 
95  III.,  5S3. 

The  court  further  instructs  the  jur}",  that  there  is  no  evi- 
dence in  this  case  authorizing  the  arrest  of  the  defendant,  at 
the  time  in  question,  and  if  the  jury  believe,  from  the  evi. 
dence,  that  the  notes  were  given  while  the  defendant  was 
under  arrest,  and  that  the  giving  of  the  notes  was  induced  by 
threats  to  prosecute  the  defendant  for  the  offense  of,  etc.,  ae 
stated  and  set  out  in  the  papers  introduced  in  evidence  in  this 
case,  or  to  further  prosecute  the  defendant  under  such  arrest, 
unless  he  sliould  give  such  notes,  then  the  said  notes  were 
obtained  by  duress,  and  are  void  as  against  the  defendant; 
provided,  the  jury  further  believe,  from  the  evidence,  that 
the  defendant,  at  the  time,  denied  the  justice  and  legality  of 
the  claim  for  which  the  notes  were  given. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  mali- 
ciously, and  without  probable  cause  for  such  arrest,  caused  the 
defendant  to  be  arrested  for  the  purpose  of  compelling  the 
defendant  to  settle  up,  or  secure  the  payment  of,  etc.,  and 
that  while  under  such  arrest,  and  for  the  purpose  of  securing 
his  discharge  therefrom,  the  defendant  executed  and  delivertjd 
the  note  in  question,  then  the  note  was  given  under  what 
the  law  terms  duress,  and  the  defendant  is  not  liable  thereon. 
[For  Malice  and  Prohahle  Cause,  iSee  MaUcious  Frosecutio)i.] 

§  54.  Giving  Note  not  Payment. — The  court  instructs  the 
jury,  as  a  matter  of  law,  that  the  giving  of  a  note  in  settlement 
of  an  account  is  not  a  payment  of  the  account,  unless  the  note 


462  NEGOTIABLE    INSTRUMENTS. 

is  of  itself  paid,  or  unless  it  is  expressly  agreed  by  and  be- 
tween the  parties  that  the  note  shall  of  itself  operate  as  pay- 
ment of  such  account,  and  in  this  case,  unless  you  find,  from 
the  evidence,  that  the  note  offered  to  be  surrendered  up  by 
the  plaintiff  was  taken  by  him  under  an  agreement  with  the 
defendant,  that  the  note  should  operate  as  payment  of  the  ac- 
count sued  on,  then  the  plaintiff's  suit  here  is  not  barred  or 
prejudiced,  by  the  giving  of  said  note. 

§  55.  New  Party — New  Consideration. — Tiiat  where  one  be- 
comes a  party  to  a  note,  after  it  has  once  been  delivered,  and 
the  consideration  passed,  he  will  incur  no  liability  unless  there 
is  a  new  consideration  for  his  promise  and  a  re-delivery  of  the 
note.  WiUlamsys,.  Williams^Ql  M-O.^QQi,  Briggsv&.Dowimig, 
48  la.,  550. 


CHAPTER  XXXVI. 

NOTICE. 


Sec    1.  Notice  to  agent, 

2.  Notice  to  corporation. 

3.  Facts  calling  for  inquiry. 

4.  Recitals  in  deed. 
6.  Unrecorded  deeds. 

§  1.  Notice  to  Affeiit. — The  Jury  are  instructed,  tliat  it  is  a 
rule  of  law  that  notice  to  an  agent  is  notice  to  his  princiiial, 
and  that  what  is  known  to  an  agent  is  known  to  his  principal; 
provided,  such  notice  or  knowledge  is  received  by  the  agent 
while  he  is  acting  as  such  agent.  Wade  on  Notice,  §  672; 
Asto?'  vs.   Wells,  4  Wheat.,  466. 

Notice  to  an  agent,  in  order  to  bind  the  principal,  must  be 
brought  home  to  the  agent,  while  engaged  in  the  business  or 
negotiation  of  the  principal  to  which  the  notice  relates;  and 
when  it  would  be  a  breach  of  trust  in  the  former  not  to  com- 
municate the  knowledge  to  the  latter.  Pringle  vs.  Dunn,  37 
Wis.,  449. 

While  it  is  a  general  rule  of  law,  that  a  notice  to  an  agent 
is  notice  to  his  principal,  still,  in  order  to  bind  a  person  by 
notice  to  his  agent,  it  must  appear,  from  the  preponderance 
of  the  evidence,  that  the  alleged  agent  was  the  agent  of  the 
party  sought  to  be  charged  in  relation  to  the  very  matter  to 
which  the  notice  relates,  and  that  the  notice  or  information 
came  to  the  knowledge  of  the  agent  while  he  was  acting  as 
such  agent.     Wade  on  Notice,  §  689. 

§  2.  Notice  to  Corporation. — The  court  instructs  the  Jury, 
that  notice  to  a  corporation  can  only  be  given  by  giving  it  to 
some  officer  authorized  to  represent  the  corporation  in  the 
particular  matter  to  which  the  notice  relates ;  or  else  to  some 
person  whose  situation  and  relation  to  the  corporation  imply 
authoritv  to  represent  the  corporation  in  such  matter.    1  Pars. 

(463) 


464  NOTICE. 

on  Cont.,  GG',  Keenan  vs.  Duhuque,  etc.,  13  la.,  375;  Fulton  Bh. 
vs.  Ifew  Yo?'k,  etc.,  4  Paige,  127;  Ilousatomc  Bk.  vs.  21a7'tin, 
1  Met,  294;  BJc.  of  the  U.  S.  vs.  Davis,  2  Hill,  451;  Far- 
mers', etc.,  BJc.  vs.  Payne,  25  Conn.,  444. 

You  are  further  instructed,  tliat  a  single  director,  simply  as 
such,  has  no  authority  to  represent  or  bind  a  corporation  ;  and 
although  you  may  believe,  from  the  evidence,  that  the  said  A. 
B.  was  a  director  in  the  defendant  corporation,  and  that  be- 
fore, etc.,  and  while  he  was  such  director,  he  had  knowledge, 
or  was  informed  of  the  fact,  etc.,  still,  these  facts  alone  would 
not  show  notice  to  the  defendant,  nor  bind  the  corporation  in 
respect  to  such  notice. 

§  3.  Facts  Calling  foi' Inquiry. — The  court  instructs  the  Jury, 
that  whatever  is  sufficient  to  put  a  purchaser  of  land  upon  in- 
quiry, as  to  the  existence  of  an  unrecorded  deed,  is  sufficient 
notice  of  such  deed.  That  in  general,  where  notice  isrequu-ed 
to  affect  the  rights  of  parties,  a  knowledge  of  such  facts  as 
ought  to  put  an  ordinarily  prudent  person  upon  inquiry,  is 
deemed  in  law  equivalent  to  notice  of  the  facts,  to  the  knowl- 
edge of  which  such  inquiries  would  have  led.  Bump  on 
Fraud.  Con.,  232;  Forles  vs.  How,  102  Mass.,  427;  Beaton  vs. 
Fraiher,  84  III.,  330;  Rice  vs.  Melendy,  41  la.,  395. 

Whatever  is  notice  enough  to  excite  attention,  and  put  a 
party  on  his  guard,  and  call  for  incniiry,  is  notice  of  every- 
thing to  which  such  inquiry  might  have  led;  and  every  un- 
usual circumstance  is  ground  of  suspicion,  and  prescribes  in- 
quiry.    Russell  vs.  Rauson,  76  111.,  167. 

The  court  instructs  you,  that  to  charge  a  person  with  notice, 
on  the  ground  that  he  had  knowledge  of  such  facts  as  ough.t 
to  have  put  him  upon  inquiry,  it  must  appear,  from  the  evi- 
dence, that  tlie  information  he  had  received  was  of  that  char- 
acter that  it  was  calculated  to  excite  the  attention  of  an  ordi- 
narily prudent  person,  and  that  such  person,  by  the  exorcise 
of  reasonable  and  ordinary  diligence,  could,  upon  inquiry  and 
investigation,  arrive  at  the  knowledge  of  the  fact  with  which 
he  is  sought  to  be  charged.  City  of  Chicago  vs.  Witt^  75 
III,  211. 

§  4.  Recitals  in  Beefl. — The  jury  are  further  instructed, 
that  tlie  recitals  in  the  deed  in  the  chain  of  title,  under  which 


NOTICE.  4G5 

a  person  claims,  are  such  notice  to  a  purchaser  of  the  property 
as  will  put  him  on  inquiry  as  to  the  nature  and  elfect  of  the 
matter  referred  to  in  the  recitals.  C.  <&  R.  1.  R.  R.  Co.  vs. 
Kennedy^  70  111.,  350 ;  Mosle  vs.  Kuhlman,  40  la.,  108. 

§  5.  Unrecorded  Deeds. — The  court  instructs  the  jury,  that 
a  deed  is  valid  between  the  parties  without  being  recorded. 
The  object  of  the  recording  law  is  to  furnish  notice  as  to  the  title 
to  real  estate,  and  of  liens  and  incumbrances  thereon  ;  but  in 
default  of  recording,  if  parties  have  such  notice  in  any  other 
form,  all  the  purposes  of  the  law  are  elfected  to  the  same 
extent  as  though  the  deed  were  recorded.  Russell  vs.  Rauson^ 
76  111.,  167;  IShotwell  vs.  Harrison,  30  Mich.,  179. 
30 


CHAPTER  XXXVII. 
PAETNEESHIP. 


Sec.     1.  Who  are  in  fact  partners. 

2.  Partnership — How  formed. 

3.  As  to  third  persons. 

4.  Holding  oneself  out  as  a  partner. 

6.  Pai  tnership  in  the  name  of  one  partner. 

6.  Test  of  partnership — Partners  as  between  themselves. 

f  7.  Powers  of  partners  to  bind  their  firm. 

8.  What  acts  do  bind — Partner  using  partnership  creditor  effects. 

9.  Acts  beyond  the  scope  of  the  partnership  business. 

10.  Bound  by  ratification. 

11.  When  fraud  of  one  partner  binds  the  other. 

12.  Notice  of  disi-olution  necessary,  when. 

13.  Cannot  sue  each  other  at  law. 

14.  When  may  sue  at  law. 

§  1.  Wlio  are  Partners,  in  Fact. — The  court  instructs  the 
jury,  that  to  constitute  a  partnership,  as  to  the  alleged  partners 
themselves,  it  is  only  necessary  that  each  of  them  contributes 
either  capital,  labor,  credit  or  skill  and  care,  or  two  or  more 
of  these,  and  that  all  the  contributions  are  put  together  into  a 
common  stock  or  common  enterprise,  to  be  used  for  the  pur- 
pone  of  can-ying  on  business  for  the  common  benefit.  Pars, 
on  Part,  54;  Story  on  Part,  §  2. 

§  2.  Partnership — How  Formed. — A  partnership  can  only 
exist  as  between  the  ]:!arties  themselves,  in  pursuance  of  an 
express  or  an  implied  agreement,  to  which  the  minds  of  the 
parties  have  assented;  the  intention,  or  even  belief,  of  one 
party  alone  cannot  create  a  partnership  without  the  assent  of 
the  others.  Story  on  Part,  §  8t);  Pars,  on  Part,  6;  Phillips 
vs.  Phillips,  49  111.,  437. 

§  3.  As  to  Third  Persons. — The  jury  are  instructed,  that 
parties  may  so  conduct  themselves  as  to  be  liable  to  third  per- 
sons  as  partners,    when,    in   fact,    no    partnership   exists    as 

(46()) 


PAETNEKSHIP.  4G7 

between  themselves.  The  public  are  authorized  to  judge  from 
appearances  and  professions,  and  are  not  bound  to  know  the 
real  facts. 

Persons  may  be  co-partners,  as  to  third  persons,  and  brought 
within  all  the  liability  of  partners,  as  to  third  persons,  who 
are  not  partners  as  between  themselves;  and  they  will  be  so 
regarded,  as  to  third  persons,  if  they  voluntarily  and  know- 
ingly so  conduct  themselves  as  to  reasonably  justify  the  pub- 
lic, or  persons  dealing  with  them,  in  believing  that  they  are 
partners.  ISpeer  vs.  Bishop^  2-i  Ohio  St.,  598;  Daileij  vs. 
Coo)is,  64  Ind.,  545. 

§  4.  Holding  Oneself  Ont  as  Partner. — The  court  instructs 
the  jury,  that  if  a  person  voluntarily  and  knowingly  holds 
.himself  out,  by  his  acts  or  language,  to  the  public  or  to  third 
persons,  as  the  partner  of  another,  and  a  third  person  deals 
with  that  other  on  the  faith  of  an  existing  partnership,  then 
the  person  so  holding  himself  out  will  be  liable  as  a  partner  to 
the  person  so  dealing,  notwithstanding  there  was,  in  "'^act,  no 
such  partnership.  Pars,  on  Part.,  61;  Smith  vs.  KnU/Jit,  71 
111.,  148;  Peck  vs.  Lush,  38  la.,  93;  Story  on  Part.,  §  64;  Jen- 
kins vs.  Crane,  54  Wis.,  253. 

If  you  believe,  from  the  evidence,  that  prior  and  up  to  the 
time  of  the  giving  of  the  note,  the  defendant  A.  E.  volun- 
tarily and  knowingly  so  conducted  himself,  in  connection  Mnth 
the  business  carried  on  at,  etc.,  as  to  reasonably  justify  the 
public  and  persons  generally  dealing  at  that  place,  in  suppos- 
ing and  believing  that  he  was  a  partner  with  said  C,  and  that 
the  plaintiffs,  before  they  sold  the  goods,  had  been  informed 
that  the  said  A.  E.  was  interested  as  a  partner  in  that  business, 
and  that  at  the  time  they  sold  the  goods  and  took  the  notes 
they  supposed  and  believed  that  he  was  a  partner,  and  acted 
on  that  supposition,  then  he  would  be  liable  on  the  note  as  a 
partner,  whether  he  was,  in  fact,  a  partner  or  not. 

If  you  believe,  from  the  evidence,  that  prior  and  up  to  the 
time  of  the  giving  of  the  note  introduced  in  evidence  in  this 
case,  A.  E.  voluntarily  and  knowingly  so  conducted  himself,  in 
connection  with  the  business  of  the  firm  of  F.  &  E.,  as  to  jus- 
tify the  plaintiffs,  and  persons  generally  dealing  with  the  firm, 
in  supposing  and  believing  ihat  he  was  a  member  of  that  firm, 


468  PAETKEKSIIIP. 

and  tliat  tlie  plaintiffs,  before  they  sold  the  goods  for  wliicli 
the  note  was  given,  had  knowledge  of  these  facts,  and  were 
thereby  induced  to  believe  that  A.  E.  was  a  partner  in  that 
firm,  and  that,  at  the  time  they  sold  the  goods  and  took  the 
note,  they  did  suppose  and  believe  that  he  was  a  member  of 
the  firm,  then  he  would  be  liable  on  the  note  as  a  partner, 
whether  he  was,  in  fact,  a  partner  or  not. 

When  persons  hold  themselves  out  to  the  world  by  their 
acts  or  declarations  as  partners,  they  will  be  liable  as  such, 
whether  such  relation  really  exists  between  them  or  not.  If 
they  knowingly  permit  their  names  to  a])pear  in  the  style  of 
the  firm  in  the  business  cards,  notices  or  advertisements  of  the 
firm,  they  cannot  esca])e  liability  for  debts  contracted  in  the 
name  of  the  firm.  Ellis  vs.  Bronsoii^  40  111.,  455;  Baryiett, 
etc.^  vs.  Blachnar,  53  Ga.,  98;  Uodd  vs.  Bishop,  30  La.  An., 
Part  2d,  1178. 

If  you  believe,  from  the  evidence,  that  prior  and  up  to  the 
time  the  note  introduced  in  evidence  in  this  case  was  given, 
A.  E.,  voluntarily  and  knowingly,  allowed  and  permitted  the 
business  of  the  firm  of  F.  &  E.  to  be  conducted  in  such  a  way 
as  to  justify  the  public  generally,  and  persons  dealing  with 
the  firm,  in  supposing  and  believing  that  he  was  a  member  of 
the  firm,  and  that  the  plaintiffs,  before  and  at  the  time  they 
suld  the  goods,  and  took  the  note  in  question,  had  reason  to 
believe,  and  did  believe,  from  the  manner  in  which  the  busi- 
ness was  conducted,  that  he  was  a  member  of  the  firm,  then 
the  plaintiff's  will  have  a  right  to  hold  him  liable  on  the  note 
as  a  member  of  the  firm. 

And  in  such  a  case,  it  is  immaterial  whether  A.  E.  made 
any  representations  personally  to  the  plaintiff  that  he  was  a 
member  of  the  firm  or  not. 

§  5.  Partnership  in  the  Name  of  one  Partner. — The  court 
instructs  the  jury,  that  although  they  may  believe,  from  the 
evidence,  that  the  business  at  S.  was  carried  on  in  the  name 
of  J.  C.  alone,  this  fact  would  not  be  conclusive  that  no  part- 
nership existed.  The  question  of  partnership  does  not  de- 
pend upon  the  name  of  the  firm,  but  upon  the  agreement  of 
the  parties  as  to  the  ownership  of  the  property,  and  as  to  the 
disposition  to  be  made  of  the  profits  of  the  business. 


PAKTNEltSUIP.  4G9 

If  you  believe,  from  the  evidence,  tliat  L.  and  C.  entered 
into  an  agreement,  bj  which  they  were  to  engage  in  the  busi- 
ness of,  etc.,  and  that  the  business  should  be  carried  on  in  the 
name  of  L.,with  money  to  be  furnished  by  C,  L.  agreeing  to 
contribute  his  time  and  labor  to  the  business,  and  that  the 
parties  should  share  equally  in  the  ])rofits  thereof,  and  if  you 
further  believe,  from  the  evidence,  that  the  parties  did  engage 
in  such  business,  under  that  agreement,  then  they  were  part- 
ners, so  far  as  third  persons  were  concerned. 

§  6.  Test  of  Partnership — Partners  as  between  Themselves. — 
The  court  further  instructs  the  jury,  that  the  criterion  for  de- 
termining whether  a  partnership  exists  as  between  the  part- 
ners themselves,  is  to  ascertain  the  intention  and  understand- 
ing of  the  parties  themselves,  at  the  time  the  partnership  is 
alleged  to  have  existed.     Pars,  on  Part.,  58. 

And  in  this  case,  if  3'ou  believe,  from  the  evidence,  that  J. 
and  E.,  at  the  time  in  question,  did  not  intend,  or  understand 
that  a  partnership  existed  between  them,  and  there  was  no 
agreement  that  they  should  share  the  profits  of  the  said  busi- 
ness of,  etc.,  then,  as  to  the  matte:s  involved  in  this  suit,  the 
question  of  partnership  should  have  no  bearing  on  your  minds, 
in  arriving  at  your  verdict  in  this  case. 

That  the  best  evidence  and  usual  test  of  a  partnership  is  the 
sharing,  between  the  alleged  partners,  of  the  pi-ofits  and  losses 
of  the  business;  and  if  you  believe,  from  the  evidence,  that 
there  never  was  any  agreement  between  J.  and  E.  to  share  the 
profits  and  losses  of  the  business  in  question,  then  this  would 
be  evidence  tending  to  show  that  no  partnership  did,  in  fact, 
^  exist  between  them. 

§  7.  Power  of  Partner  to  Bind  the  Firm. — Every  partner  pos- 
sesses full  and  absolute  authority  to  bind  all  the  partners,  by 
his  acts  or  contracts,  in  relation  to  the  business  of  the  firm,  in 
the  same  manner,  and  to  the  same  extent,  as  if  he  held  full 
power  of  attorney  from  them;  and  as  between  the  firm  and 
third  paities,  who  deal  with  it,  in  good  faith  and  without  no- 
tice, it  is  a  matter  of  no  consequence  whether  the  partner  is 
acting  fairly  with  his  co-partners,  in  the  transaction,  or  not,  if 
he  is  acting  within  the  apparent  scope  of  his  authority,  and 


470  PAKTNERSHIP. 

professedly  for  the  firm.  Pars,  on  Part,  172;  Story  on  Part., 
§  101;  Pahlman  vs.  Taylor,  75  III,  629;  First  Natl.  Bank 
vs.  Carjpenter^  41  la.,  518. 

If  a  partnership,  as  such,  engages  in  any  transaction  outside 
of  its  regular  business,  the  acts  and  declarations  of  one  part- 
ner, if  proved,  with  respect  to  that  transaction,  bind  the  firm 
as  much  as  though  they  were  made  with  respect  to  some  mat- 
ter in  the  course  of  its  ordinary  and  customary  business.  San- 
dilands  vs.  Marsh,  2  B.  &  Aid.,  673;  Boardnian  et  al.  vs. 
Adams  et  al.,  5  la.,  224. 

§  8.  \^\2Li  Acts  do  not  Bind — Partner  Using  Partnership  Credit 
or  Effects. — The  jury  are  instructed,  that  one  partner  has  no 
right  to  apply  the  funds  or  securities,  or  other  effects  of  the 
.partnership,  in  payment  of  his  own  private  debts,  without  the 
consent  of  his  co-partners ;  and  if  he  does  so,  the  creditor  deal- 
ing with  such  partner,  if  he  knows  the  circumstances,  will  be 
deemed  to  have  acted  in  bad  faith,  and  in  fraud  of  the  other 
partners,  and  the  transaction  will  be  void  as  to  them.  Pars. 
on  Part.,  Ill;  Story  on  Part.,  §  132. 

You  are  further  instructed,  that  one  partner  has  no  right 
or  authority  to  use  the  credit  of  the  partnership,  or  to  gi\e  a 
note,  in  the  name  of  the  firm,  for  his  own  debt,  or  in  his  own 
individual  transactions,  without  the  consent  ot  his  copartners; 
and  if  he  does  so,  the  note  or  security  given  will  be  void  in 
the  hands  of  any  person  who  has  knowledge  of  the  ]3urpose 
for  which,  and  the  circumstances  under  which,  such  note  or 
security  was  given. 

You  are  further  instructed  that,  when  a  note,  or  other 
security,  is  given  in  the  name  of  the  firm,  by  one  partner,  in 
payment  of  his  own  individual  debt,  the  law  raises  a  presum]> 
tion  that  it  was  done  without  the  knowledge  or  consent  of 
the  other  partners,  and  the  burden  of  ])roving  such  knowledge 
and  consent,  is  ui)on  the  party  alleging  it.  Story  on  Part., 
§  133;  Pars,  on  Part,  112. 

§  9.  Acts  Beyond  the  Scope  of  Partnership  Business. — The  court 
instructs  the  jury,  that  each  member  of  a  firm  is  presumed 
to  have,  and  has,  authority  to  bind  the  firm  within  the  scope 
of  the  partnership  business;  but  'v\  order  to  bind  the  fii'm  in 


PARTNERSHIP.  471 

matters  outside  of  or  beyond  the  apparent  scope  of  the  part- 
nership business,  the  authority  of  one  partner  to  act  for  the 
firm,  must  be  shown,  precisely  the  same  as  if  any  other 
person  had  performed  the  act.  McN'air  vs.  Piatt,  46  111., 
211 ;  Boardman  et  al.  vs.  Adams  et  al.  5  la.,  224. 

§  10.  Bound  by  Ratification. — The  jury  are  instructed,  that 
while  one  partner  cannot  rightfully  ai)propriate  partnership 
funds  to  the  payment  of  his  individual  debts,  yet,  if  he  does 
do  so,  his  acts,  when  they  come  to  the  knowledge  of  the 
other  members  of  the  firm,  should  be  clearly  and  promptly 
repudiated;  and  if,  when  such  knowledge  comes  to  the  other 
members  of  the  firm,  they  do  not,  within  a  reasonable  time 
thereafter,  repudiate  the  transaction,  they  will  be  deemed  to 
have  ratified  it,  and  will  be  bound  to  the  same  extent  as  though 
they  had  expressly  authorized  it  in  the  first  instance.  Whether, 
in  this  case,  the  debt  in  question  was  paid  out  of  partnership 
funds  by  the  said  A.  B.,  and  whether  the  other  partners  had 
knowledge  of  that  fact,  and  whether  they  did  repudiate  the 
transaction,  and  notify  the  said,  etc.,  of  that  fact,  as  soon  as  it 
could  reasonably  be  done,  are  all  questions  to  be  determined 
by  the  jury,  from  a  consideration  of  all  the  evidence  in  the 
case.  Pars,  on  Part.,  Ill;  Marine  Co.,  etc.,  vs.  Qarver,  ^^ 
111.,  m. 

§   11.     When  Fraud    of  one  Partner    Binds  the  Other. — The 

court  instructs  the  jury,  that  if  a  fraud  is  committed  by  one 
]:)artner,  in  the  name  of  the  firm,  in  the  course  of  the  partner- 
ship business,  it  will  bind  the  firm,  even  though  the  other 
partners  had  no  knowledge  of  the  fraud,  or  participation  in  the 
transaction  to  which  it  relates.  Story  on  Part.,  §  131;  Pars, 
on  Part.,  150. 

§  12.  Notice  of  Dissolution  Necessary,  Wlien. — The  court  in- 
structs the  jury,  that  the  law  is,  that  when  a  partnership  is 
dissolved,  and  one  of  the  partners  continues  the  business  as 
before,  the  retiring  partner,  to  protect  himself  from  future 
liabilities,  should  see  that  public  notice  of  such  dissolution,  or 
of  his  retirement,  is  given  in  some  manner,  so  as  fairly  and 
reasonably  to  notify  the  public  of  the  fact  of  his  withdrawal  from 


4:72  PAKTNEESHIP. 

the  firm;  and  if  lie  does  not  do  so,  persons  dealing  witli  the  part- 
ner who  continues  the  business,  without  actual  notice  of  the 
dissolution,  will  have  a  right  to  relj  on  the  credit  of  the  origi- 
nal firm.     Pars,  on  Fart.,  410;  Story  on  Part.,  §  65,  160. 

When  one  partner  withdraws  from  the  firm,  and  the  busi- 
ness is  continued  by  the  other  partners,  the  retiring  partner 
should  see  that  persons  who  have  formerly  dealt  with  the  firm 
have  reasonable  notice  of  such  retirement,  or  else  those  who 
continue  to  deal  with  the  firm,  without  actual  notice  of  his 
withdrawal,  can  hold  him  liable  as  a  member  of  the  firm. 
HoUgreve  vs.  Wmtker,  85  111.,  470;  Davis  vs.  Willis,  47  Tex., 
154;  Haynes  vs.  Carter^  12  Heisk.,  7;  Austin  vs.  Holland,  69 
K  T.,  571;   Gilcrist  vs.  Brande,  58  Wis.,  184. 

§  13.  Cannot  Sue  Each  Other  at  Law. — The  court  instructs 
the  jury,  that,  under  our  practice,  one  partner  cannot  maintain 
an  action  at  law  against  his  coj^artner  for  work  and  labor  per- 
formed, or  for  money  paid,  laid  out  or  expended  for,  or  on 
account  of,  the  partnership,  nor  for  the  use  or  occupation  of 
any  of  the  pai-tuership  property. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  and 
defendant  were  copartners  during  any  portion  of  the  time  cov- 
ered by  the  accounts  in  question,  then  you  should  exclude 
from  their  consideration,  all  items  of  account,  concerning,  or 
growing  out  of,  the  partnership  business,  if  any  such  have 
been  proved. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  and  de- 
fendant were  partners  as  to  a  portion  of  the  plaintiff's  claim, 
and  not  partners  as  to  the  residue,  then  the  fact  of  partnership 
will  in  nowise  interfere  with  the  plaintiff's  right  to  recover  as 
to  such  residue. 

If  you  believe,  from  the  evidence,  that  the  parties  to  this 
suit,  at  the  time  in  question,  were  partners,  as  to  the  said,  etc., 
and  in  the  use  thereof,  and  that  the  charges  in  plaintiff's  bill 
of  particulars  in  relation  to  said,  etc.,  and  to  the  use  thereof, 
are  matters  pertaining  to  the  said  partnership,  and  growing 
out  of  the  same,  and  have  never  been  settled  or  adjusted  be- 
tween the  parties,  then  such  matters  cannot  be  litigated  in  this 
suit,  and  you  should  disregard  all  such  items  in  making  up 
vour  verdict. 


PAKTNEESniP.  473 

§  14.  When  May  Sue  at  Law. — Altliongh  the  jury  may  be- 
lieve, from  the  evidence,  that  the  plaintiff  and  defendant  were 
formerly  partners,  and  that  the  account  sued  on  grew  out  of 
their  partnership  business,  and  is  claimed  by  the  plaintiff  as 
the  balance  due  to  him,  upon  a  settlement  of  such  business, 
still,  if  the  jury  further  believe,  from  the  evidence,  that  the 
partnership  had  been  dissolved,  and  the  partnership  business 
settled  between  the  parties,  and  a  balance  struck  and  agreed 
upon  as  the  amount  due  to  the  plaintiff,  before  the  commence- 
ment of  this  suit,  then  the  plaintiff  can  maintain  a  suit  for  sueli 
balance.  Wi/cof  vs.  Panielly  10  la.,  332;  Jiidgwai/ vs.  Grant, 
17  111.,  117. 


CHAPTER   XXXVIII. 

REPLEVIN. 


NO  PLEA  OF  JUSTIFICATION. 

Sec    1.  When  the  action  lies. 

2.  Right  of  possession  of  property  sufficient. 

3.  Burden  of  proof  and  what  must  be  proved. 

4.  Wrongful  detaining — Burden  of  proof. 

5.  Wrongful  detention — How  proved. 

6.  Demand,  when  not  necessary. 

7.  Demand,  when  necessary — Plea  von  cepit  and  von  definuet  only. 

8.  Wrongful  taking  or  a  demand  must  be  proved. 

9.  Demand,  what  essential  to. 

PLEA  OF  JUSTIFICATION. 

10.  Replevin  against  an  officer. 

11.  Execution  conclusive  as  to  third  persons  or  if  not  disputed. 

12.  Execution  and  indorsements,  2}>'i»tnfocie  evidence,  when. 

13.  Justification  under  execution,  when  demand  necessary. 

14.  Interest  of  joint  owner. 

15.  Property  replevied  from  an  officer — Burden  of  proof. 

16.  Plea  of  property  in  A.  and  B.,  attachment  creditors. 

17.  Plea,  property  in  a  stranger. 

18.  Possession  evidence  of  title. 

19.  Lien  of  execution — By  statute. 

20.  Fraudulent  sale. 

21.  Temporary  possession  by  vendor. 

22.  Growing  crops,  when  personal  property. 

23.  Levy  on  crops  and  taking  possession. 

24.  Property  cannot  be  taken  from  one  holding  it  under  a  replevin 

bond. 

25.  Property  of  minor  child. 

26.  Right  of  property  in  the  plaintiff,  to  a  part. 

27.  Building,  personal  property,  when. 

28.  Liens  of  judgment  and  chattel  mortgage. 

29.  Trover,  property  not  found. 

30.  Bailee  cannot  deny  bailor's  title. 

STOCK  DISTRAINED. 

31.  Right  to  distrain  cattle  trespassing. 

32.  Must  be  taken,  damage  feasant. 

(474) 


EEPLEVIN.  475 

Note. — The  common  law  rules  governing'  the  action  of  replevin  are  vari- 
ously modified  by  statute  and  by  local  usag^e,  or  practice,  in  the  different 
Btates;  but  the  following  instructions  will  be  found  to  be  generally  applica- 
ble to  the  practice  in  most  of  the  states. 

NO  PLEA  OF  JUSTIFICATION. 

§  1.  Wlien  the  Action  Lies. — The  jury  are  instructed,  tliat  to 
entitle  the  plaintiff  to  recover  under  the  issues  in  this  case,  it 
is  only  necessary  that  he  should  |)rove,  by  a  preponderance  of 
the  evidence,  tliat  he  was  the  owner  of  the  property  in  ques- 
tion, and  entitled  to  the  possession  of  tlie  same  when  this  suit 
was  commenced,  and  that  it  had  been  wrongfully  taken  from 
his  possession  by  the  defendant,  or  that  it  was  then  wrongfully 
detained  by  him.  Hill,  on  Rem.  for  Torts,  2;  Eanon  vs.  Tar- 
lell,  9  Cush.,  407;  Eggleston  vs.  Mundij,  4  Mich.,  295;  Flat- 
ner  vs.  Good,  29  K  W.  Eep.,  56;  Moore's  Justice,  §  315 
et  seq. 

§  2.  Right  to  Possession  of  Property  SufScient. — Tliat  it  is  not 
essential  to  a  recovery  by  the  plaintiff  in  this  suit,  that  he 
should  have  been,  at  any  time,  the  absolute  owner  of  the  prop- 
erty; it  is  sufficient  if  the  proof  shows,  that  before  and  at  the 
time  of  the  commencement  of  tliis  suit,  the  plaintiff  was  en- 
titled to  the  possession  of  the  property;  that  he  denianded  the 
same  of  the  defendant,  before  commencing  the  suit,  and  after 
the  plaintiff  became  entitled  to  such  possession,  and  that  the 
defendant  refused  to  surrender  tlie  property  to  the  plaintiff 
upon  such  demand.  Campbell  vs.  Williams^  39  la.,  640. 
Ilill.  on  Eem.  for  Torts,  20;  Nolle  vs.  Epperhj,  6  Ind.,  414; 
Loomis  vs.  Youle,  1  Minn.,  175;  Bramwell  vs.  Rart,  12  Ileisk., 
356. 

The  jury  are  instructed,  that  it  is  not  necessary,  in  order  to 
support  this  action,  as  regards  the  issue  of  wrongful  detention, 
that  there  should  have  been  a  wrongful  taking  of  the  prop- 
erty by  the  defendant;  provided,  the  jury  believe,  from  the 
evidence,  that  the  defendant  had  the  same  in  his  possession 
when  this  suit  was  commenced,  and  then  wrongfully  detained 
the  same  after  a  demand  by  the  plaintiff  for  the  possession 
thereof. 

If  the  jury  believe,  from  'lie  evidence,  that  at  the  time  this 


476  EEPLEVIN. 

suit  was  commenced,  the  plaintiff  was  lawfully  entitled  to  the 
immediate  possession  of  the  property  described  in  the  decla- 
ration, and  that  the  defendant  had  the  same  in  his  possession, 
and  that  before  the  snit  was  commenced,  and  while  the  plaint- 
iff was  60  entitled  to  such  possession,  there  was  a  demand 
made  for  the  property  by  the  plaintiff,  and  a  refusal  to  deliver 
the  same  by  the  defendant,  then  the  jury  should  find  for  the 
plaintiff,  upon  the  issue  of  wrongful  detention. 

In  this  action,  the  title  of  ownership  of  the  property  is  not 
necessarily  involved.  If  the  jury  believe,  from  the  evidence, 
that  the  defendant  Iiad  the  property  in  his  possession,  and  that 
the  plaintiff  made  a  demand  on  him  for  it  before  commencing 
this  suit,  then  the  party  who  was  entitled  to  the  possession  of 
the  property  at  that  time,  is  the  one  entitled  to  3^our  verdict 
in  this  case,  as  regards  the  issue  of  wrongful  detention. 

§  3.  Burflen  of  Proof — Wliat  Mnst  be  Proved. — The  jury  are 
instructed,  that  before  the  plaintiff  can  recover  in  this  action  he 
must  prove,  by  a  preponderance  of  evidence,  that  at  the  time 
of  the  commencement  of  this  suit  he  was  the  owner  of  the 
])roperty  in  question,  or  that  he  was  then  entitled  to  the  im- 
mediate possession  of  the  same,  and  he  must  also  fui-ther 
prove,  by  a  preponderance  of  the  evidence,  that  the  defend- 
ant wrongfully  took  the  property  in  question,  or  else  that  he 
wrongfully  detained  it  from  the  plaintiff,  after  a  demand  made 
upon  him  by  the  plaintiff  for  the  property.  Bardwell  vs. 
StuUut,  23  N.  W.  Eep.,  344. 

In  actions  of  this  kind,  if  there  is  no  evidence  of  a  wrong- 
ful taking  of  the  property,  and  no  proof  of  a  demand  of  the 
property  before  the  commencement  of  the  suit,  then  the 
])laintitf  is  not  entitled  to  recover,  unless  the  jury  find,  from 
the  evidence,  and  the  instructions  of  the  court,  that  the  de- 
fendant has,  in  some  other  manner,  manifested  an  intention  to 
resist  the  plaintiff's  claim  to  the  property,  or  his  right  to  the 
possession  thereof. 

In  this  case  neither  a  wrongful  taking  nor  a  wrongful  de- 
tention of  the  property  is  to  be  presumed  without  proof,  but 
to  warrant  a  verdict  against  the  defendant,  his  guilt  must  be 
proved,  by  a  preponderance  of  the  evidence. 


REPLEVIN.  477 

§  4.  Burden  of  Proof  of  Wrongful  Retaining. — The  court  in- 
structs the  jury,  that  to  entitle  the  plaintiff  to  recover  ujion 
the  issue  of  detention,  it  is  incumbent  upon  the  plaintiff  to  es- 
tablish, by  a  preponderance  of  evidence,  that  the  goods  and 
property  replevied  were  in  the  possession  of  the  defendant,  or 
under  his  control,  and  that  he  detained  the  same  from  the 
plaintiff  at  the  time  the  suit  was  commenced;  and  unless  the 
jury  believe,  from  the  evidence,  that  the  property  in  question 
was  in  the  possession  of  the  defendant,  or  subject  to  his  con- 
trol at  the  time  the  suit  was  commenced,  and  that  he  then 
detained  the  fame  from  the  plaintiff,  then,  as  to  the  issue  of 
wrongful  detention,  the  jury  should  find  for  the  defendant. 
Reynolds  vs.  McCormick,  62  111.,  412. 

§  5.  Wrongful  Detention,  How  Proved. — The  court  instructs 
the  jury,  that  if  they  believe,  fi'om  the  evidence,  that  the 
plaintiff  was  entitled  to  the  possession  of  the  property  before, 
and  at  the  time  of,  the  commencement  of  this  suit,  and  that  a 
demand  for  the  possession  was  made  by  the  plaintiff  upon  the 
defendant,  and  a  delivery  of  the  property  refused  by  him, 
while  the  plaintiff  was  so  entitled  to  possession,  and  before  the 
commencement  of  this  suit,  then  such  demand  and  refusal  are 
evidence  of  a  wrongful  detention ;  but  they  are  not  necessarily 
the  only  evidence  of  such  detention ;  other  facts  and  circum- 
stances tending  to  show  such  detention,  if  proved,  are  proper 
evidence  to  be  considered  by  the  jury;  and  if  they  believe, 
from  the  evidence,  and  from  such  other  facts  and  circum- 
stances as  the  jury  find  to  have  been  proved,  that  there  was  a 
wrongful  detention  of  the  property,  as  explained  in  these  in- 
structions, then  the  proof  of  demand  and  refusal  was  unneces- 
sary to  prove  a  wrongful  detention. 

§  6.  When  Demand  not  Necessary. — If  the  jury  believe,  from 
the  evidence,  under  the  instruction  of  the  court,  that  the 
plaintiff  was  the  owner  of  the  property,  and  entitled  to  the 
possession  of  it,  and  that  the  defendant  took  the  property 
wrongfully  from  the  possession  of  the  plaintiff,  then  a  demand 
and  refusal  befoi-e  the  commencement  of  this  suit  is  not  neces- 
sary to  be  proved,  under  the  issues  in  this  case,  to  entitle  the 
plaintiff  to  recover.  Dickson  vs.  Randal^  19  Kans.,  212; 
Jones  vs.  ^^ard,  77  N.  C,  337. 


^ 


478  EEPLEVIN. 

When  property  is  wrongfully  taken  from  the  possession  of 
the  party  legally  entitled  thereto,  then  no  demand  for  the 
property  is  necessary  to  enable  the  person  bo  entitled  to  the 
possession  to  bring  his  suit  in  replevin.  And  in  this  case,  if 
the  jury  believe,  from  the  evidence,  that  the  plaintiff  was  the 
owner  of  the  {heifer)  in  quetion,  and  that  defendant  went  to 
plaintiff's  pasture  and  took  the  {heifer)  therefr-  m  without 
plaintiff's  permission,  and  against  his  will,  then  no  demand 
was  necessary  before  commencing  this  suit.  Gilchrist  vs. 
Moore^  7  la.,  9;  Hill,  on  Eem.  for  Torts,  67;  Nevyman  vs. 
Jenne^  47  Me.,  520;  Stillman  vs.  Squire^  1  Denio,  327; 
Rhoades  vs.  Drummond,  3  Col.,  374. 

The  court  instructs  the  jury,  that  by  this  plea  in  this  case, 
the  defendant  claims  title  to  the  property  in  himself,  {and  in 
one  A.  £.),  and  denies  the  right  of  property  and  of  possession 
in  the  plaintiff;  and  although  the  jury  may  believe,  from  the 
evidence,  that  the  defendant  came  rightfully  into  possession 
of  the  projierty,  still,  under  the  pleadings  in  this  case,  it 
is  wholly  unnecesKiry  for  the  plaintiff  to  prove  a  demand 
and  refusal  before  commencing  the  suit,  to  entitle  him  to 
a  verdict  of  wrongful  detention;  provided,  the  jury  further 
believe,  from  the  evidence,  under  the  instructions  of  the 
court,  that  the  ])laintiff  was  entitled  to  the  possession  of  tl  e 
property  at  the  time  of  the  commencement  of  the  suit,  lea- 
ver vs.  Dingley,  4  Greenlf.,  306;  Leiois  vs.  Masters^  8  Blackf., 
244;  Hill,  on  Eem.  for  Torts,  66;  Smith  vs.  McLean,  24  la., 
322;  Lewis  vs.  Smart,  67  Me.,  206. 

If  the  jury  tind,  from  the  evidence,  under  the  instructions 
of  the  court,  that  the  defendant  came  lawfully  into  the 
possession  of  the  property  in  controversy,  then  they  will  find 
for  the  defendant,  unless  they  further  find,  from  the  evidence, 
that  the  plaintiff,  prior  to  the  commencement  of  this  suit, 
made  a  demand  upon  the  defendant  for  the  property,  and  that 
the  defendant  refused  to  surrender  it  upon  such  demand,  un- 
less the  jury  further  find,  from  the  evidence,  that  before  the 
commencement  of  this  suit  the  defendant  had,  in  some  man- 
ner, manifested  an  intention  to  resist  the  plaintiff's  claim  to 
the  property,  or  to  deny  his  right  to  the  possession  thereof. 

§  7.  \Mien  Demand  Necessary — Pleas  Non  Cepit  and  Non  De- 
timiit  Only. — If  the  jury  believe,  from  the  evidence,  that  the 


EEPLEVIN.  479 

property  in  question  came  into  the  possession  of  the  defend- 
ant with  the  knowledge  and  consent  of  the  plaintiff,  then, 
before  the  plaintiff  could  properly  commence  this  suit,  he 
would  have  to  make  a  demand  on  the  defendant  for  a  return 
of  the  property,  and  unless  it  appears,  from  a  preponderance 
of  the  evidence,  that  he  did  make  such  demand,  the  jury 
should  find  for  the  defendant,  unless  the  jury  further  believe, 
from  the  evidence,  that  the  defendant,  before  the  commence- 
ment of  this  suit,  had,  by  his  conduct  or  language,  or  by  both, 
manifested  an  intention  to  disregard  and  repudiate  any  claim 
of  right  or  title  in  tlie  property  by  the  plaintiff.  Hill,  on 
Eem.  for  Torts,  67;  Lewis  vs.  Masters^  8  Blackf.,  244;  Kel- 
logg vs.  Oleson,  2  N.  W.  Eep.,  364. 

That  if  the  jury  believe,  from  the  evidence,  that  the  de- 
fendant borrowed  the  property  in  controversy  from  the 
plaintiff  for  a  tem])orary  use  or  purpose,  giving  the  plaintiff 
to  understand  that  he  would  return  the  property  when- 
ever the  plaintiff  should  desire  it,  then  the  plaintiff  would 
not  be  entitled  to  commence  this  suit  until  after  he  had 
first  demanded  the  property  from  the  defendant;  and  if  the 
plaintiff  has  failed  to  show  such  demand  and  refusal,  by  a 
preponderance  of  evidence,  then  the  jury  should  find  for  the 
defendant;  provided,  the  jury  further  find,  from  the  evi- 
dence, that  before  the  commencement  of  this  suit,  the  defend- 
ant had  done  no  act  inconsistent  with  the  plaintiff's  right  to 
the  property,  or  showing  an  mtention  to  repudiate  the  same. 
Simpson  vs.  Wretm,  50  111.,  222;  Story  on  Bailments,  §  266; 
Moore's  Justice,  322. 

§  8.  Wrongful  Taking  or  Demand  must  be  Proved. — If  the  jury 
believe,  from  the  evidence,  that  at  the  time  this  suit  was  brought, 
the  plaintiff'  was  entitled  to  the  possession  of  the  property, 
still  he  is  not  entitled  to  recover  in  this  suit  upon  the  issue  of 
wrongful  detention,  unless  it  appears,  from  the  evidence,  tliat 
the  defendant  wrongfully  took  the  property,  or  unless  the 
plaintiff  has  proved  a  legal  demand  for  the  property  before 
this  suit  was  brought,  or  some  other  facts  and  circumstances 
showing  an  unlawful  detention  by  the  defendants,  as  explained 
in  these  instructions. 


480  KEPLEVIN. 

§  9.  "VMiat  Essential  to  a  Demand. — In  order  to  make  a  legal 
demand  of  articles  of  personal  property  by  one  person  from 
another,  such  property  must  be  indicated  by  name  or  by  proper 
words  of  description,  or  reference,  so  as  to  apprise  the  party 
upon  whom  the  demand  is  made  what  particular  property  is 
demanded;  otherwise  such  demand  would  not  be  sufficient 
whereon  to  brhog  replevin  for  the  detention  of  such  property. 

[See  Trover.] 

PLEA  OF  JUSTIFICATION. 

§  10.  Replevin  against  an  Officer. — The  court  instructs  the 
jury,  that  if  they  believe,  from  the  evidence,  that  the  defend- 
ant R.  was  a  constable  of  this  county  at  the  time  of  the  levy 
of  the  execution,  ojffered  in  evidence  in  this  case,  and  that 
under  such  execution,  as  such  constable,  he  levied  upon  the 
property  in  question  on,  etc.,  at,  etc.,  and  also  that  the  prop- 
erty so  levied  upon  was  then  the  property  of  the  defendant  in 
the  execution,  then  the  jury  should  find  for  the  defendant. 

The  justice's  docket,  introduced  in  evidence  in  this  case,  is 
sufHcient  evidence  of  the  rendition  of  the  judgment  mentioned 
in  the  plea,  and  the  jury  should  consider  that  fact  as  j^roved. 

§  11.  Execution  Conclusive  as  to  Third  Person,  or  if  not  Dis- 
puted.— That  tlie  execution  with  the  indorsement  thereon,  in- 
troduced in  evidence  in  this  case,  is  sufficient  proof  of  the  issu- 
ing of  the  execution  mentioned  in  the  plea,  the  time  when  the 
same  was  received  by  the  officer,  the  date  of  the  levy,  and  the 
sale  of  the  property  in  question,  and  the  jury  should  consider 
all  these  matters  proved,  as  they  appear  in  the  execution  and 
the  indorsements  thereon. 

§  12.     Execution  and  Indorsements  Prima  Facie  Evidence,  When. 

— The  jury  are  instructed,  that  as  regards  the  defendants,  C, 
D.  and  E.  {the  officer  and  plaintiffs  in  execution),  the  indorse- 
ments and  return  of  the  officer  ujion  the  execution  read  in  evi- 
dence, 2iTQ  prima  facie  proof  of  the  time  when  the  execution 
came  into  the  hands  of  the  officer,  the  time  of  the  levy,  upon 
what  property  the  same  was  levied,  and  what  became  of  the 
]:)ro]:)erty.  Hill,  on  Rem.  for  Torts,  391;  Phillips  vs.  ElwelU 
14:  Ohio  St.,  210;  Harper  vs.  Moffit  et  al,  11  la.,  527. 


REPLEVIN.  481 

§  13.  Justification  nnili^r  Execution — WHien  Demand  Necessary. — 
The  jury  are  instructed,  that  if  they  believe,  from  the  evidence, 
that  the  defendant  A.  B.  was  an  acting  constable  in  and  for 
the  county  of  C,  and  tliat  as  such  constable,  the  execution 
shown  in  evidence  came  into  his  hands,  to  be  executed  by  him, 
and  that  while  the  property  in  dispute  was  in  the  possession 
and  under  the  control  of  one  or  both  of  the  defendants  in  said 
execution,  the  said  constable  levied  the  execution  upon  the 
property  in  controversy,  as  the  property  of  one  or  both  of  the 
defendants,  such  taking  and  levy  would  not  be  unlawful  as  to 
the  plaintiff,  and  in  such  case,  unless  the  jury  believe,  from  the 
evidence,  that  a  demand  for  the  property  was  made  before 
bringing  this  suit,  then  the  defendant  would  not  be  guilty  of 
a  wrongful  taking,  or  of  a  wrongful  detention.  Tuttle  vs. 
RoUnson,  78  111.,  332. 

§  14.  Interest  of  Joint  Owner. — One  of  the  questions  before 
the  jury  in  this  case  is  the  ownership  of  the  property  at  the 
time  the  execution  was  placed  in  the  hands  of  the  officer  {or 
was  levied  on  the  property  in  controversy)'^  and  if  the  jury 
find,  from  the  evidence,  that  "W.  J.,  the  defendant  in  the  ex- 
ecution, owned  the  property  levied  on,  or  had  an  interest 
therein  as  partner  at  the  time  of  the  delivery  of  the  execution 
to  the  officer  (cr  at  the  time  the  execution  was  levied  on  the 
'property),  then  the  property,  or  such  interest  therein,  was  sub- 
ject to  the  lien  of  such  execution  and  to  a  sale  under  the  same, 
and  the  plaintiff  cannot  recover. 

§  15.  Property  Replevied  from  an  Officer — Burden  of  Proof. — 
The  jury  are  instructed  that  the  burden  of  proof  is  on  the 
]ilaintiff  to  establish,  by  a  preponderance  of  evidence,  his  right 
to  the  possession  of  the  property  in  controversy;  and  if  the 
jury  believe,  from  the  evidence,  that  the  plaintiff  has  not  es- 
tablished his  right  to  the  possession  of  the  property  at  the 
time  of  the  levy,  by  a  preponderance  of  the  evidence,  the  jury 
should  find  for  the  defendant. 

§  16.     Plea  of  Property  in  A.  and  B.,  Attachment  Debtors. — The 

jury  are  instructed,  that  if  they  find,  from  the  evidence,  and 
under  the  instructions  of  the  court,  that  at  the  time  the  attach- 
31 


482  REPLEVIN. 

ment  writ  was  levied,  A.  or  B.  bad  any  interest  in  the  prop 
erty  in  question,  which  was  subject  to  the  attachment  writ,  as 
explained  in  these  instructions,  then  the  jury  should  find  the 
right  of  property  in  the  said  A.  and  B.,  or  in  one  of  them,  as 
the  case  may  be,  and  find  the  defendant  not  guilty. 

If  the  jury  find,  from  the  evidence,  under  the  instruction 
of  the  court,  that  neither  A.  nor  B.  had  any  intei-est  in  the 
property,  and  further,  that  the  plaintiff  was  the  owner  of,  and 
entitled  to  the  possession  of  the  property  at  the  time  this  suit 
was  commenced,  then  the  jury  should  find  the  property  in  the 
plaintiff,  and  find  the  defendant  guilty;  provided,  the  jury 
further  find,  from  the  evidence,  that  the  defendant  wrongfully 
took,  or  wrongfully  detained  the  property,  as  charged  in  the 
declaration,  and  as  explained  in  these  instructions. 

§  17.  Plea,  Property  in  a  Stranger. — The  court  instructs  the 
jury,  that  the  defendant  in  this  case,  with  his  otlier  pleas,  has 
pleaded  property  in  himself,  and  also  in  one  A.  B.;  and  if  the 
jury  believe,  from  the  evidence,  that  the  defendant  has  shown 
property  in  himself,  or  in  the  said  A.  B.,  he  will  be  entitled 
to  a  verdict  from  the  jury,  that  they  find  the  property  in  the 
defendant,  or  in  the  said  A.  B.,  as  the  fact  may  be  found  by 
the  jury. 

§  18.  Possession  Evidence  of  Title. — The  court  instructs  the 
jury,  that  under  the  issues  in  this  case,  the  burden  of  proving 
property  in  himself,  so  far  as  the  right  of  property  is  con. 
cerned,  is  upon  the  plaintiff;  and  if  possession  of  the  property 
has  been  shown  by  the  evidence  to  liave  been  with  the  said 
A.  B.  at  the  time  it  is  alleged  to  have  been  levied  upon,  then 
such  possession  is  prima  facie  evidence  of  title  in  the  said 
A.  B.  Hill,  on  Rem.  for  Torts,  62;  Martin  vs.  Bay,  1  Black., 
291. 

§  19.  Lien  of  Execution  by  Statxite. — The  jury  are  instructed, 
that  the  execution  read  in  evidence,  was  a  lien  upon  all  the 
personal  property  of  A.  B.,  the  defendant  therein,  from  the 
time  the  execution  came  into  the  hands  of  the  ofiicei-,  and  that 
no  sale  or  transfer  of  such  property,  by  the  said  A.  B.,  after 
tliat  timj,  could  destroy  or  affect  such  lien.     And  if  the  jury 


REPLEVIN.  483 

believe,  from  the  evidence,  that  the  alleged  sale  and  delivery 
of  the  property,  by  A.  B.  to  the  plaintiff,  was  made  after  the 
execution  came  into  the  hands  of  the  officer,  such  sale  would 
be  void  as  against  the  execution  creditors,  no  matter  whether 
made  in  good  faith  and  for  a  valuable  consideration  or  not, 
and  the  property  could  properly  be  taken  on  the  execution. 
Childs  vs.  Jones,  60  Ala.,  352;  Marsh  vs.  Newton^  71  Ind.,  22. 

§  20.  Fraudulent  Sale. — If  the  jury  believe,  from  the  evi- 
dence, that  the  property  in  question  was  sold  to  the  plaintiff 
by  the  defendant  in  the  execution,  before  the  execution  came 
into  the  hands  of  the  officer  (before  the  execution  was  levied^ 
etc.),  still,  if  the  jury  further  believe,  from  the  evidence,  that 
such  sale  was  made  to  hinder  or  delay  the  creditors  of  the  said 
defendant  in  the  collection  of  their  debts,  and  that  the  plaint- 
iff knew  of  the  purpose  of  such  sale  and  was  a  party  to  it, 
assisting  in  such  fraudulent  purpose,  then  such  sale  was  void 
as  against  the  execution  creditors,  whether  the  plaintiff"  paid 
a  valuable  consideration  for  the  property  or  not. 

If  the  jury  believe,  from  the  evidence,  that  the  property  in 
controversy  was  in  the  possession  of  the  plaintiff,  he  claiming 
to  be  the  owner  thereof  at  the  time  it  was  taken  upon  the 
execution,  this  is,  prima  facie  evidence  of  ownership  in  him. 
And  if  the  jury  further  believe,  from  the  evidence,  that  while 
the  plaintiff  was  so  in  possession  the  defendant  took  the  same 
from  him,  then  the  jury  sLould  find  the  right  of  property  in 
the  plaintiff',  unless  the  jury  further  find,  from  the  evidence, 
that  the  plaintiff  did  not  own  the  property,  or  that  the  sale 
thereof  from  C.  to  the  plaintiff,  was  made  with  a  view,  on  the 
part, of  C,  of  hindering,  delaying  or  defrauding  his  creditors, 
and  that  the  plaintiff  knew,  or  had  good  reason  to  know,  of 
such  fraudulent  purpose,  at  the  time  he  purchased  the  prop- 
erty. 

§  21.  Temporary  Possession  by  Vendor. — If  the  jury  believe, 
from  the  evidence,  that  before  the  execution  came  into  the 
hands  of  the  officer  (or  was  levied  upon  the  property),  the 
plaintiff"  bought  the  property  from  the  defendant,  in  the  exe- 
cution, in  good  faith,  for  a  valuable  consideration,  and  on  the 
same  day  took  actual  possession  of  the  property,  then,  although 


484:  EEPLEvm. 

tlie  jury  may  further  believe,  from  tlie  evidence,  that  he 
afterwards  loaned  the  property  hack  to  the  defendant  in  the 
execution,  for  a  temporary  purpose,  such  loaning  back,  if  made 
in  good  faith,  would  not  alone  render  or  make  void  the  plaint- 
iff's title  to  the  property,  nor  make  it  subject  to  the  execu- 
tion. 

§  22.  Growing  Crops,  Wlien  Personal  Property. — The  court 
instructs  the  jury,  that  growing  crops,  in  law,  are  regarded  for 
some  purposes  as  personal  property,  and  for  some  purposes  as 
a  part  of  the  real  estate  upon  which  the  crops  are  growing. 
As  between  seller  and  purchaser  of  real  estate,  they  are  re- 
garded as  bolonging  to  the  real  estate,  and  will  pass  with  the 
conveyance  of  the  land  to  the  purchaser,  un"'ess  they  are  ex- 
pressly reserved  in  writing.     Carpenter  vs.  Jones,  63  111.,  517. 

§  23.  Levy  on  Crops  and  Taking  Possession. — Although  the 
law  requires  an  oflBcer,  in  levying  on  personal  property,  to  take 
the  same  into  his  possession,  yet,  in  the  case  of  growing  crops, 
or  other  bulky  or  heavy  articles,  it  only  requiies  him  to  take 
such  possession  thereof,  as  the  article,  from  its  nature,  will 
reasonably  admit  of;  and  if  the  jury  believe,  from  the  evi- 
dence in  this  case,  that  the  officer,  in  attempting  to  make  the 
levy  in  question,  went  to  the  fields  of  grain  levied  on,  and  had 
the  same  in  his  immediate  view  and  ]:)resence,  and  notified  the 
defendant  in  the  execution  that  he  had  taken  the  crops,  under 
the  execution  introduced  in  evidence,  this  would  be  a  sufficient 
levy  on  the  property  in  question.  Fierce  vs.  Roche^  40  111., 
292. 

§  24.  Propei-ty  Cannot  be  Taken  from  one  Holding  it  nnder 
Replevin  Bond. — If  the  jury  believe,  from  the  evidence,  that 
before  the  time  of  the  levy  of  the  execution,  in  this  case,  the 
plaintiff  has  commenced  a  suit  in  rei)levin,  etc.,  for  the  goods 
in  controversy,  and  that  the  goods  were  delivered  to  him 
under  the  bond  given  by  him  in  the  replevin  suit  and  that,  at 
the  time  of  the  levy  of  the  execution,  the  action  of  replevin 
was  still  pending  and  plaintiff's  bond  was  still  held  by  the 
officer  for  the  return  of  the  goods,  then  the  plaintiff  had,  during 
the  pendency  of  such  replevin  suit,  the  legal  right  to  the  pos- 


KEPLEVIN.  485 

session  of  said  goods.  The  action  of  rej^ilevin  is  a  proceeding 
against  the  property  as  well  as  against  the  person,  and  where 
the  plaintiff  gives  a  bond  and  receives  the  property  from  the 
ofScer  who  replevies  it  until  the  end  of  the  replevin  suit,  the 
property  is  regarded  as  in  the  custody  of  the  law,  the  plaint- 
iff becomes  its  custodian,  and  property  so  held  cannot  be 
levied  upon  and  taken  from  the  plaintiff  in  replevin,  and  any 
attempt  to  take  it  is  a  trespass. 

§  25.  Property  of  Minor  Child. — If  the  jury  believe,  from 
the  evidence,  that  the  plaintiff  with  the  knowledge,  permission 
and  consent  of  his  father,  earned  money  during  his  minority 
in  working  for  persons  other  than  his  father  and  that  the 
father  consented  to  said  earnings  being  paid  to  his  son  and  that 
they  were  so  paid  to  him,  then  the  money  so  earned  was  the 
property  of  the  plaintiff,  and  he  could  appropriate  and  use  it 
as  he  saw  fit  so  far  as  the  issues  in  this  case  are  concerned. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff 
received  the  horse,  when  a  colt,  as  a  gift  from  his  father,  and 
that  the  father  at  the  time  he  made  the  gift  had  other  prop- 
erty, enough  to  pay  all  the  debts  he  owed  at  that  time,  then  it 
is  a  matter  of  no  importance  whether  he  had  property  enough 
to  pay  all  his  debts  last  spring  or  at  any  other  time  since  such 
gift  was  made. 

§  26.  Right  of  Property  in  the  Plaintiff  to  a  Part,  etc. — In  ren- 
dering their  verdict  in  this  case,  the  jury  have  a  right  to  find 
the  right  of  property,  in  a  portion  of  the  property  in  question^ 
in  one  party,  and  the  remainder  in  another  party,  if  they  be- 
lieve, from  the  evidence,  that  such  is  the  fact.  If  the  jury  do 
so  find,  they  should  so  state  in  their  verdict. 

§  27.  Building  Personal  Property,  When. — The  court  instructs 
the  jury,  that  where  a  building  is  owned  by  one  person,  and 
the  land  on  which  it  stands  is  owned  by  another,  then  the 
building  is  personal  property;  and  it  will  always  remain  per- 
sonal property  until  the  ownership  of  the  land,  and  that  of 
the  building,  unite  in  the  same  person.  Crljjpui  vs.  Morri- 
son, 13  Mich.,  23. 

Where  one  wrongfully  places  his  building  upon  the  lot  of 


4:86  KEPLEYIN. 

anotlier,  in  sucli  a  way  as  to  attach  it  to  the  ground,  the  build- 
ing will  belong  to  the  owner  of  the  land;  but  where  one  right- 
fully and  lawfully  places  his  building  on  the  land  of  another, 
without  any  intention  of  having  it  belong  to  the  owner  of  the 
land,  then  it  will  not  belong  to  such  owner.  Cooley  on  Torts, 
307;  1  Hill,  on  Torts,  470;  AdatTis  vs.  Goddard,  48  Me.,  212; 
1  Hill,  on  Eeal  Prop.,  5. 

Where  the  building  of  one  person  stands  upon  the  land  of 
another,  a  purchaser  of  the  land  will  not  become  the  owner  of 
the  building,  unless  the  owner  of  the  building  has  abandoned 
the  possession  of  it,  so  that  the  purchaser  of  the  land  has  no 
notice  of  the  builder's  rights  in  the  premises. 

To  make  a  house  a  part  of  the  real  estate,  it  is  not  neces- 
sary that  it  should  be  so  affixed  that  detaching  it  will  disturb 
the  earth,  or  rend  any  part  of  the  building.  Where  a  house 
is  erected  on  a  lot  by  any  person  claiming  to  own  the  land, 
and  intended  by  him,  at  the  time,  as  a  permanent  fixture,  the 
house  wnll  become  a  part  of  the  real  estate,  no  matter  how  it 
may  be  built  upon  the  land. 

If  the  jury  believe,  from  the  evidence,  that  R.  was  the 
owner  of  the  land  on  which  the  building  in  question  stands, 
and  that  M.,  as  the  tenant  of  R.,  placed  the  building  on  the 
land  with  R.'s  consent,  and  with  the  understanding  or  agree- 
ment with  E.  that  M.  might  remove  the  same  at  the  expi- 
ration of  his  lease,  then  the  building  would  be  personal  prop- 
erty, and  it  would  not  be  conveyed  by  a  conveyance  of  the 
land,  so  long,  at  least,  as  M.  and  those  holding  under  him  con- 
tinued in  possession  of  the  property,  under  the  lease.  Cooley 
on  Torts,  306;  Barnes  vs.  Bar/ies,  6  Yt.,  388;  Smith  vs. 
£enso7i,  1  Hill.,  176. 

The  jury  are  instructed,  that  although  a  building  is  prima 
facie  real  estate,  and  belongs  to  the  owner  of  the  land  on 
which  it  stands,  still  it  may  be  personal  property,  and  owned 
by  a  person  who  is  not  the  owner  of  the  land;  and  the  build- 
ing is  personal  property  when  it  is  erected  by  the  builder, 
with  his  own  means,  and  for  his  own  use,  on  the  land  of 
another,  in  ])ursuance  of  an  undei-standing  between  him  and 
the  owner  of  the  land,  that  the  building  shall  belong  to  the 
builder. 

If  the  jury  believe,  from_the  evidence,  that  M.  took  pos- 


EEPLEVIN.  487 

session  of  tlie  land  on  which  the  building  stands,  under  a  lease 
from  R.,  with  the  privilege  of  removing  an^'^  improvements 
placed  thereon  by  himself,  at  or  before  the  expiration  of  the 
lease,  and  further,  that  M.  continued  to  hold  over  and  occupy 
the  premises,  either  by  himself  or  his  tenant,  after  the  expi- 
ration of  the  lease,  with  the  knowledge  and  consent  of  R.,  then 
the  law  would  presume  that  such  holding  over  was  upon  the 
same  terms  as  to  the  right  to  remove  improvements,  as  were 
contained  in  the  original  lease. 

If  the  jury  believe,  from  the  evidence,  that  before  the 
house  in  question  was  built,  the  plaintilS  and  defendant  entered 
into  a  contract,  by  which  defendant  agreed  to  purchase  the 
land  where  the  house  was  built  from  the  plaintiff,  and,  under 
that  contract,  went  into  possession  of  the  land  and  erected  the 
house  thereon,  with  the  intention  of  having  it  remain  there  as 
a  permanent  fixture  to  the  land,  then  the  house,  as  soon  as  it 
was  built,  became  a  part  of  the  real  estate,  and  in  law  belonged 
to  the  owner  of  the  land,  and  any  alleged  contract  authorizing 
the  defendant  to  remove  the  house  therefrom,  would  have  to 
be  in  writing  to  be  binding  on  the  plaintiff.  Crum  vs.  Hill, 
40  Iowa,  506;  1  Hill,  on  Torts,  469;  Groff  vs.  aConner^lQ 
111.,  421, 

§  28.  Lien  of  Judgment  and  Chattel  Mortgage. — The  jury  are 
instructed,  that  a  judgment  is  not  a  lien  upon  personal  prop- 
erty of  the  debtor;  an  execution  becomes  a  lien  upon  such 
property  from  the  time  it  is  received  by  the  officer  {or  levied 
on  the  property),  and  not  before. 

If  the  jury  believe,  from  the  evidence,  that  plaintiff's  chattel 
mortgage  was  made  in  good  faith  to  secure  a  honafide  indebt- 
edness, and  that  it  was  acknowledged,  entered  upon  the  justice's 
docket,  and  recorded  in  the  recorder's  office,  before  the  execu- 
tion came  into  the  officer's  hands  {or  was  levied  on  the  'prop- 
erty), then  the  mortgage  will  hold  the  property  in  preference 
to  the  execution. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff's 
only  claim  to  the  property  in  question  was  derived  from  the 
mortgage  in  evidence,  and  that  the  property  was  allowed  to 
remain  in  the  possession  of  the  mortgagor,  after  the  expiration 
of  the  time  for  the  payment  of  the  debt  secured  by  said  mort- 


488  KEPLEVIN. 

gage,  and  after  a  reasonable  time  for  the  mortgagee  to  take 
possession  of  tlie  proi;erty,  and  that  while  it  was  so  in  the 
possession  of  the  mortgagor,  the  execution  introducetl  in  evi- 
dence was  placed  in  the  hands  of  the  officer  {or  was  levied  on 
the  property)^  then  the  law  is,  that  the  proj:!erty  was  liable  to 
such  execution.      Whisler  vs.  lioberts,  19  111.,  274. 

§  29.  Trover — Property  not  Found. — The  jury  are  instructed, 
that  if  they  believe,  from  the  evidence,  that  the  plaintiii"  was 
the  owner  of  the  property  in  question,  and  entitled  to  the  pos- 
session thereof  before  and  at  the  time  of  the  conunencement 
of  this  suit,  and  that  the  defendant  was  guilty  of  the  wrongful 
taking  {or  of  the  wrongful  detention)  of  the  same,  then,  if  for 
any  cause,  the  property,  or  any  part  of  it,  was  not  fonnd  or 
taken  on  the  replevin  writ,  the  plaintiff  is  entitled  to  recover 
in  this  suit  the  value  of  the  property  not  so  found  or  taken, 
and  such  damages,  if  any  are  proved,  as  the  plaintiff  has  sus- 
tained by  the  wrongful  taking  and  detention  {or  by  the  wrong- 
ful detention^  of  the  remainder  of  the  property. 

If  the  jury  believe,  from  the  evidence,  that  either  from 
want  of  title,  or  from  want  of  demand  for  the  possession  of 
the  property  before  suit  was  brought,  the  plaintiff  had  no  right 
to  the  possession  of  the  property,  as  explained  in  these  instruc- 
tions, when  the  replevin  writ  was  issued,  then  he  cannot  recover 
for  the  value  of  the  property  in  controversy  in  this  suit. 

§  30.  Bailee  Cannot  Deny  Bailor's  Title. — The  court  instructs 
the  jury,  that  if  they  believe,  from  the  evidence,  that  the 
defendant  borrowed  the  property  in  controversy  from  the 
plaintiff"  for  a  temporary  use  or  purpose,  with  the  understand- 
ing that  he  would  return  the  property  when  demanded,  and 
that  afterwaids,  and  before  the  commencement  of  this  suit, 
the  plaintiff"  made  such  demand,  and  that,  upon  such  demand, 
the  defendant  refused  to  deliver  up  the  possession  of  the 
property,  then  the  jury  should  find  the  right  of  property  in 
the  ])laintiff,  and  the  defendant  guilty  of  a  wrongful  detention 
of  the  same.     Simpson  vs.   W7'enn,  50  111.,  222. 

The  court  further  instructs  the  jury,  that  if  tliey  believe, 
from  the  evidence,  that  the  defendant  borrowed  the  ])roperty 
in  controversy  from  the  plaintiff",  then  the  defendant  becnmo 


REPLEVIN.  4:S9 

tlie  bailee  of  the  plaintiff,  and  he  cannot  set  up  title  to  tlie 
property  in  hini.solf  in  this  action  to  defeat  the  plaintiii's  right 
of  recovery;  and  if  the  jury  further  believe,  from  the  evi- 
dence, that  before  the  commencement  of  this  suit,  the  ])laint- 
iif  demanded  the  property  from  the  defendant,  and  that  he 
refused  to  give  it  up,  claiming  it  as  his  own,  then  tlie  jury 
should  find  the  projierty  in  the  plaintiff,  and  the  defendant 
guilty  of  a  wrongful  detention. 

STOCK  DISTRAINED. 

§  31,  Right  to  Distrain  Cattle  Trespassing. — The  court  in- 
structs the  jury,  that,  by  the  laws  of  this  state,  if  any  {cattle 
or  hogs)  shall  be  wrongfully  trespassing  upon  the  premises  of 
another,  the  owner  or  occupier  of  such  prem'ses  may  take 
such  animals  into  his  possession,  and  keep  the  same  until  all 
damages,  with  reasonable  charges  for  keeping  and  feeding, 
are  paid,  or  until  such  occ.ipier  or  owner  of  the  premises  shall 
have  had  reasonable  time  to  recover  the  same  by  suit  against 
the  owner  of  the  stock;  provided,  that  within  {twenty-four 
hours)  from  the  time  of  taking  up  said  stock,  the  person  so 
taking  them  up  notify  the  owner  that  he  has  done  so. 

The  jury  are  instructed,  that  at  the  time  and  place  of  the 
committing  of  the  alleged  tresjiass,  as  complained  of  in  this 
suit,  no  one  was  bound  to  fence  his  land  against  cattle  that 
were  permitted  by  the  owner  to  run  at  large  in  the  public  streets 
or  highways,  and  in  such  ease,  when  cattle  are  allowed  to  run 
at  large  in  the  public  highway,  the  owner  is  bound  to  take 
such  measures  as  will  ])revent  their  escaping  from  the  high- 
way upon  the  adjoining  lands  of  others;  and  if  they  do  so  es- 
cape, they  are,  within  the  meaning  of  the  law  in  this  case, 
wrongfully  upon  the  land  of  such  other  person,  whether  such 
lands  are  protected  by  a  good  and  sufficient  fence  or  not. 

When  the  cattle  of  one  person  are  wrongfully  trespassing 
upon  the  lands  of  another,  as  explained  in  these  instructions, 
the  owner  of  the  land  has  a  right  to  take  up  such  cattle  while 
so  trespassing,  and  to  detain  them  in  his  possession  to  secure 
the  payment  of  the  damages  done,  if  any,  together  with  rea- 
sonable charges  for  feeding  and  keeping  the  same;  and  he  has 
{twenty-four  hours)  in  which  to  notify  the  owner  that  he  has 
taken  them  up. 


490  REPLEVIN. 

If  the  Jury  believe,  from  tlie  evidence,  that  the  cattle  in 
question  either  escaped  from  the  defendant's  pasture  or  were 
permitted  by  him  to  run  at  large  in  the  public  highway,  and 
while  so  upon  the  public  highway,  they  escaped  therefrom, 
and  went  upon  the  plaintiff's  land  without  his  knowledge  or 
consent,  then  they  were  wj-ongfully  upon  such  land,  and  the 
owner  had  a  right,  while  they  were  there,  to  distrain  them, 
by  taking  them  into  his  possession,  aud  keeping  the  same 
until  all  damages,  with  reasonable  charges  for  keeping  and 
feeding  the  stock,  were  paid  by  the  owner;  provided,  that 
within  [twenty-four  hours)  from  the  time  of  taking  up  said 
stock  he  notified  the  owner  that  he  had  done  so. 

§  32.  Mnst  be  Taken  Damage  Feasant. — The  court  instructs 
the  jury,  that,  to  warrant  the  distraining  of  cattle  dunaqe 
feasant,  the  cattle  must  be  upon  the  premises  owned  or 
occupied  by  the  party  distraining  at  the  time  they  are  dis- 
trained. 

The  fact,  if  proved,  that  cattle  may  have  passed  over  the 
premises  owned  or  occupied  by  a  person,  will  not  warrant  a 
distraint  of  the  cattle  after  they  get  onto  the  premises  of 
another. 

The  owner  or  occupier  of  land  has  no  right  to  distrain  cattle 
found  upon  his  premises  for  damages  done  at  another  time 
than  the  one  when  the  distraint  is  made,  whether  such  dam- 
age was  done  upon  the  same  or  uj)on  other  lands  of  the  party 
distraining. 


CHAPTEK  XXXIX. 
RESIDENCE  AND  DOMICIL. 


Sec.    1.     Residence  and  domicil  defined. 

2.  Domicil  of  husband  tliat  of  wife. 

3.  Change  of  domicil  or  residence. 

§  1.  Residence  and  Domicil  Defined. — The  court  instructs  the 
jury,  that  there  may  be  a  distinction  between  a  man's  domicil 
and  his  residence;  a  person  may  have  a  domicil  in  one  place 
and  his  residence  in  another— a  man's  domicil  is  that  place 
where  he  has  his  true,  tixed  and  permanent  home;  two  things 
must  concur  to  establish  a  domicil,  the  fact  of  residence  and 
the  intention  of  remaining,  while  to  constitute  residence  with- 
in the  legal  meaning  of  the  term,  it  is  sufficient  if  the  person 
has  a  settled,  fixed  abode  for  the  time  being  for  business  or 
for  other  purposes. 

§  2.  Domicil  of  Husband  That  of  Wife.— The  jury  are  further 
instructed,  as  a  matter  of  law,  that  the  domicil  of  the  husband 
upon  marriage  at  once  becomes  the  domicil  of  the  wife,  and 
the  domicil  of  the  wife  continues  to  be  the  same  as  that  of  the 
husband  so  long  as  they  remain  together  as  husband  and  wife. 
Bouvier's  Law  Die;  Webster's  Die;  Board  of  Sups.  \&.  Dav- 
enport, 40  III,  197. 

§  3.  Cliange  of  Domicil  or  Residence. — The  court  instructs 
the  jury,  that  to  constitute  a  change  of  domicil,  there  must 
be  the  act  of  removal  combined  with  the  intention  of  remain- 
ing. If  the  jury  believe,  from  the  evidence,  that  J.  L.,  the 
husband  of  the  defendant,  some  time  and  about,  etc.,  removed 
from  this  state  to,  etc.,  with  the  intention  of  taking  up  his 
permanent  residence  there  and  without  the  intention  of  return- 
ing to  this  state  as  a  place  of  residence,  and  that  he  never  did 
return  to  this  state,  then  the  domicil  of  the  said  J.  L.,  at  the 
time  of  his  death,  was  not  in  this  state.  Hayes  vs.  llayes^  74 
111.,  312. 

(491) 


492  EESIDENCE    AND    DOMICIL. 

The  domicil  of  the  husband  is  that  of  the  wife  so  long  aa 
thej  live  together  as  husband  and  wife,  and  the  domicil  of 
the  widow  continues  to  be  that  of  her  late  husband  until  she 
changes  it  of  her  own  volition,  and  if  she  does  change  her 
domicil  of  her  own  motion  and  \olition  hy  taking  up  her 
permanent  residence  elsewhere,  then  the  presumption  that  her 
domicil  is  that  of  her  late  husband  ceases.  Kennedy  vs. 
Kennedy,  87  111.,  250;  timith  vs.  Smith,  28  N.  W.  Eep.,  296. 


CHAPTER  XL. 
SALE  OF  PEKSONAL  PKOPERTr. 


Sec.     1.  When  the  title  passes. 

2.  Conditional  sale, 

o.  Transfer  of  the  bill  of  lading'. 

4.  A  thief  acquires  no  title — He  can  convey  none. 

§  1.  AVhen  Title  Passes. — There  is  a  difference  between  a 
sale  of  personal  property  and  an  agreement  to  sell;  under  a 
mere  agreement  to  sell  no  title  passes;  but  whenever  parties 
have  agreed  upon  the  terras  of  a  sale  and  the  precise  prop- 
erty sold  is  identified  and  nothing  remains  to  be  done  but  to 
deliver  it,  and  it  appears,  from  the  evidence,  that  the  parties 
understood  and  intended  the  title  to  pass  without  actual  de- 
livery, then  the  title  will  pass  without  such  delivery;  but 
where  anything  remains  to  be  done,  by  way  of  selecting  out 
or  separating  the  property  from  other  property  of  the  same 
kind,  for  the  purpose  of  identifying  the  property  sold,  then 
no  title  will  pass  until  the  property  has  been  so  selected  and 
identitied.  Robinson  \&.  Hirshfelder,  59  Ala.,  503;  Smith  vs. 
Sparhnaii,  55  Miss.,  649  ;  Fletcher  vs.  Ingrain,  46  Wis.,  191; 
nalm  et  al.  vs.  Fredricks,  30  Mich.,  223. 

If  the  jury  believe,  from  the  evidence,  that  tlie  lumber  which 
the  plaintiff  claims  to  have  bought  was  standing  in  a  pile  by 
itself,  and  that  the  plaintiff  and  the  said  A.  B.,  upon  the 
occasion  in  question,  were  speaking  of  that  particular  lot  of 
lumber  and  the  plaintiff  said,  I  will  take  the  lumber  at  $20 
per  1,000,  and  the  said  A.  B.  replied,  you  can  have  it  (or  the 
lumber  is  yours),  this  would  constitute  a  valid  sale  and  suf- 
ficient to  pass  the  title  at  that  time  to  the  plaintiff,  although 
the  quantity  of  lumber  in  the  pile  was  then  unknown,  and  it 
was  necessary  to  measure  the  lumber  to  ascertain  the  quantity 
or  the  amount  of  money  to  be  paid  therefor.  Burrows  vs. 
Wldtal-er,  71  N.  Y.,  291. 

If  the  jurv  believe,  from  the  evidence,  that  at  the  time  of 

(493) 


494  SALE  OF  PERSONAL  PEOPEETY. 

the  alleged  sale  A.  was  indebted  to  B.  in  the  sum  of  $ ,  and 

that  A.  turned  out  and  sold  the  lumber  in  question  to  B.,  under 
an  agreement  between  tliem  that  the  same  should  be  applied 
in  payment  or  in  part  payment  of  such  indebtedness,  and  that 
they  then  put  the  lumber  in  chai-ge  of  one  C,  and  that  lie 
agreed  to  take  charge  of  the  same  and  look  after  it  for  B., 
then  such  transaction  amounted  to  a  completed  sale  and 
transfer  of  the  title,  although  the  jury  may  further  be- 
lieve, from  the  evidence,  that  the  amount  of  the  lumber  was 
to  be  ascertained  by  future  measurement,  and  the  purchase 
price  to  be  determined  by  future  inspection,  the  purchaser  to 
]}ay  any  excess  of  the  purchase  price  over  his  debt,  and  the 
seller  to  make  good  any  deficiency.  Colwell  vs.  Keystone  Iron 
Co.,  36  Mich.,  51. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiffs 
delivered  the  property  in  question  to  the  said  P.  under  an 
agreement  by  which  P.  was  to  hold  the  same  as  the  property 

of  the  plaintiffs  until  he  paid  them  the  sum  of  % ,in  weekly 

installments  of  $ — ,  per  week,  and  that  the  said  P.  has  never 

fully  paid  the  said  sum  of  % ,  but  did  attempt  to  sell  the 

said  projjerty  to  the  defendant,  and  that  the  defendant  took 
the  property  in  goud  faith,  still  the  defendant,*  in  such  case, 
acquires  no  better  title  to  the  property  than  the  said  P.  him- 
self had,  and  the  jury  should  find  the  right  of  property  in  the 
plaintiff.     Sanders  vs.  Keber  et  al.,  28  Ohio  St.,  630. 

§  2.  Conditional  Sale. — The  jury  are  instructed,  as  a  matter 
of  law,  that  where  personal  property  is  agreed  to  be  sold  and 
is  delivered  under  an  agreement  that  the  same  is  to  be  paid 
for  in  future  installments  payable  at  different  times,  the  owner- 
ship and  title  of  the  property  to  remain  in  the  vendor  until 
the  full  payment  of  the  purchase  price,  then  the  full  payment 
is  a  condition  precedent,  and  until  a  full  performance  tlie 
property  does  not  rest  in  the  pui-chaser. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  sold 
the  machine  in  question  to  A.  B.  at  an  agreed  price  to  be  paid 
at  a  future  time,  and  then  delivered  the  said  machine  to  the 
said  A.  B.,  but  upon  the  exjiress  condition  and  agreement 
that  no  title  should  ]:»ass  to  him  until  after  the  purchase  price 
was  paid  in  full,  and  that,  in  the  meantime,  the  title  should 
remain  in  the  ])laintiff,  then,  if  the  jury  further  believe,  from 


SALE  OF  PERSONAL  PEOPEKTT.  495 

the  evidence,  that  the  purchase  price  has  never  been  paid  in 
fill],  the  machine  still  remains  the  property  of  the  plaintiff. 
Jowers  vs.  Blandy,  58  Ga.,  379;  Bradshaw  vs.  Warner,  54 
Ind.,  58. 

The  court  instructs  the  jury,  that  although  the  written  con. 
tract  introduced  in  evidence  in  terms  speaks  of  the  said  ma- 
chines as  having  been  rented  from  the  said  plaintiff  to  the 
said  P.  and  calls  for  installments  of  payments  to  be  paid  as 
rent,  still,  if  the  jury  believe,  from  the  evidence,  and  from  all 
the  facts  and  circumstances  proved  on  the  trial,  that  a  sale  was, 
in  fact,  intended  between  the  parties,  and  that  stipulated  pay- 
ments were  in  reality  understood  to  be  payments  upon  the 
purchase  money,  and  that  the  machine  was  delivered  by  the 
said  plaintiff  to  the  said  P.  under  such  contract,  and  if  the  jury 
further  believe,  from  the  evidence,  that  the  defendant  after- 
wards purchased  the  said  machine  from  the  said  P.  in  good 
faith,  relying  upon  his  possession  and  apparent  ownershi]),  and 
paid  him  for  the  same,  and  without  any  knowledge  that  the 
plaintiff  had  not  been  paid  in  full  therefor  or  that  he  set  up 
any  claim  to  the  said  machine,  then  the  jury  should  find  the 
right  of  property  in  the  defendant.  Oeer  vs.  Churchy  13  Bush, 
430;  Domestic  Sewing  Maddne  Co.  vs.  Anderson^  23  Minn.,  57. 

§  3.  Transfer  of  Bill  of  Lading. — The  jury  are  instructed,  as 
a  matter  of  law,  that  the  transfer  of  a  bill  of  lading  in  g0(;d 
faith  in  the  ordinary  course  of  business  and  for  valuable  con- 
sideration operates  to  transfer  to  the  holder  thereof  the  title 
to  the  goods  mentioned  or  covered  by  the  bill  of  lading.  Davis 
vs.  Russell,  52  Cal.,  611;  Cochrane  vs.  Riply,  13  Bush,  495;^ 
Cent.  Sav.  Bk.  vs.  Garrison,  2  Mo.  App.,  58 ;  Price  vs.  Wis- 
cojisin,  etc.,  Ins.  Co.,  43  Wis.,  267. 

§  4.     A  Tliief  Acquires  no  Title  and  Can   Convey  None. — The 

court  instructs  the  jury,  that  by  a  larceny  of  goods  a  thief  ac-  - 
quires  no  title  to  them,  and  if  he  attempts  to  sell  the  goods  he 
cannot  convey  any  title  to  them  as  against  the  person  from 
whom  they  were  stolen.  But  whether,  in  this  case,  the  horse 
formerly  belonged  to  the  plaintiff,  and  whether  the  said  A.  B. 
stole  the  horse  from  him,  etc.,  etc.,  are  all  questions  of  fact  to 
be  determined  by  the  jury  from  the  evidence  in  the  case. 
Breclienridge  vs.  McAfee,  55  Ind.,  141. 


CHAPTER  XLI. 

SLANDER  AND  LIBEL. 


SLANDER NO  PLEA  OF  JUSTIFICATION 

Sec.     1.  Nature  of  the  action. 

2.  Malice  and  damages  presumed  from  speaking  actionable  words. 

3.  All  the  words  need  not  be  proved. 

4.  Malice  defined. 

5.  Words  presumed  to  have  been  used  in  their  ordinary  meaning. 

6.  Charge  of  fornication  or  adultery. 

STATUTE  OF  LIMITATIONS  PLEADED. 

7.  Charge  of  dishonesty. 

8.  Charge  of  arson  by  innuendo. 

9.  Charge  of  murder  by  innuendo. 

10.  Words  must  be  proved  iis  charged. 

11.  Words  not  spoken  maliciously, 

12.  Anger  no  justification. 

13.  Anger  in  mitigation. 

14.  Slanderous  words  explained. 

PLEA  OF  JUSTIFICATION. 

15.  All  the  words  need  not  be  proved. 

16.  Plea  of  justification,  how  proved. 

17.  When  the  plea  does  not  impute  crime. 

18.  Plea  of  justification  filed  in  good  faith. 

19.  Office  of  the  plea  of  justification. 

20.  Repeating  reports. 

LIBEL. 

21.  Libel  defined. 

22.  Malice  defined. 

23.  Damages  presumed,  when. 

24.  Plea  of  justification. 

25.  Malice,  when  presumed. 

26.  How  the  words  are  to  be  understood. 

27.  Plea  of  justification  an  aggravation  of  damages. 

28.  Plea  of  justification,  when  not  an  aggravation. 

29.  Mitigation  of  damages. 

80.  No  plea  of  justification  filed. 

31.  General  issue  impliedly  admits,  etc. 

(496) 


SLANDER  AND    LIIiEL.  497 

NO  ri.KA  OF  JUSTIFICATION  FILFD. 

§  1.  Nature  of  the  Action. — The  court  instructs  the  jury, 
that  slander  is  regarded  in  ]aw  as  a  malicious  wrong  and 
injury,  and  an  action  for  it  has  as  legitimate  a  standing  in  a 
Court  of  justice  as  any  other  action. 

§  2.  Malice  and  Damage  Presumed  from  Speaking  Actionable 
Words. — The  jury  are  instructed,  that  words  that  impute  to  a 
party  the  commission  of  the  crime  of  {larceny)  are  actionable 
in  themselves,  and  the  law  presumes  that  the  party  uttering 
them  intended  maliciously  to  injure  the  person  concerning 
whoiri  they  are  spoken,  unless  the  contrary  appears  from  the 
circumstances,  occasion  or  manner  of  the  speaking  of  the 
words. 

All  the  plaintiff  is  bound  to  prove  on  his  part  to  entitle 
him  to  recover  in  this  case  is  the  speaking,  by  the  defendant, 
of  enough  of  tlie  slanderous  words  charged  in  the  declaration 
to  amount  to  a  charge  of  {stealing  or  larceny)  against  the 
plaintiff;  and  if  the  jury  believe,  from  the  evidence,  that  the 
defendant  is  guilty  of  the  speaking  of  the  slanderous  words, 
charged  in  the  declai-ation,  of  and  concerning  the  plaintiff, 
then  express  malice  or  ill-will  need  not  be  proved.  Malice, 
in  its  legal  sense,  means  a  wrongful  act,  done  intentionally, 
wnthout  just  cause  or  excuse.  Smart  vs.  Blanchard,  42  N.  H., 
137;  LicJ&  vs.  Owen,  47  Cal.,  252;  Wilson  vs.  Noonan,  35 
AVis.,  321;  RearicJc  vs.  Wilcox,  81  111.,  77;  Pennington  vs. 
Meeks,  4t5  Mo.,  217;  Indianapolis,  etc.,  vs.  Ilorrel,  53  Ind., 
527. 

If  the  jury  beh'eve,  from  the  evidence,  that  the  defendant 
spoke  and  publislied,of  and  concerning  the  plaintiff,  the  words 
charged  in  the  declaration,  then  the  law  presumes  they  were 
spoken  maliciously,  and  with  a  view  to  defame  and  injure  the 
plaintiff;  and  this  presumption  of  law  can  only  be  rebutted  by 
evidence  that  the  words  were  spoken  in  what  is  known  as  a 
privileged  commiknication,  as  explained  in  these  instructions 
(and  there  is  no  evidence  that  they  were  so  spoken  in  this 
case). 

If  the  jury  believe,  from  the  evidence,  that  the  defendant, 
in  speaking  of  the  plaintiff,  in  the  presence  and  hearing  of 
32 


498  SLANDER  AND    LIBEL. 

Others,  used  the  words,  "She  is  a  whore,"  or  "She  is  a  damned 
whore,"  {or  other  actionahle  words  char geclin  the  declaration)^ 
then  the  words  are  actionable  in  thenHelves,  and  the  hiw  im- 
ph'es  that  they  were  used  witli  a  malicious  intent  to  defame 
the  character  of  the  plaintiif,  and  express  malice  need  not  be 
proved.     Klewin  vs.  Bawnan.  53  Wis.,  244. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
spoke  the  words  charged  in  the  declaration,  in  the  presence 
and  hearing  of  others,  intending  to  charge  the  defendant  witli 
having  committed  the  crime  of,  etc.,  then  the  law  wull  imply 
malice,  and  malice  need  not  otherwise  be  proved. 

§  3.  All  the  AVords  Need  not  be  Pi'oved. — The  court  instructs 
the  jury,  that  while  it  is  necessary  to  entitle  the  plaintiff  to 
recover  in  an  action  of  slander,  that  lie  should  prove  the  slan- 
derous words  alleged  in  the  declaration,  still  it  is  not  necessary 
to  prove  all  the  words  that  are  charged  to  have  been  spoken. 
It  is  sufficient  to  prove,  substantially,  the  words  in  some  one 
or  more  of  the  statements  of  slanderous  words  contained  in  the 
declaration.     Hill,  on  Rem.  for  Torts,  375. 

To  authorize  a  verdict  for  the  plaintiff  in  an  action  of 
slander,  it  is  not  necessary  that  all  the  slanderous  words  alleged 
in  the  declaration  should  be  proved,  unless  it  takes  them  all  to 
constitute  the  slander  charged;  and,  in  this  case,  if  ihe  jury 
believe,  from  the  evidence,  that  a  sufficient  number  of  the 
words  charged  in  the  declaration  to  amount,  in  their  common 
meaning,  to  a  chai-ge  of  {larceiiy)  against  the  plaintitf,  have 
been  proved  to  have  been  spoken  by  the  defendant,  as  charged 
in  the  declaration,  then  the  jury  sliould  find  the  issues  for  the 
plaintiff.  BaA'er  vs.  Young,  44il\\ ,  42;  Du  f res)ie  ys.  Weise, 
4G  Wis.,  290;  Bolt  vs.  Bicdwkj,  28  K  W.  Eep.,  282. 

§  4.  Malice  Defined. — The  jury  are  instructed,  that  the  tei-m 
malice  has,  in  \a.\v,  a  two-fold  signification.  There  is  what  is 
known  as  malice  in  fact  and  malice  in  law,  qf  implied  malice; 
in  the  legal  sense,  as  applied  to  this  case,  malice  signifies  the 
motive  which  prompts  a  wrongful  act  intentionally  done  with- 
out justification  or  legal  excuse,  as  explained  in  these  instruc- 
tions. 


SLANDER  AND    LIBEL.  499 

§   5.      Words  Presumed  to  be  Used  in  tlieir  Ordinary  Meaninir. — 

The  jury  aie  instructed,  that  when  one  ]  erson  utters  slander- 
ous words  concerning  another,  which,  in  their  ordinary  and 
common  signification,  impute  the  crime  or  offense  of,  etc.,  it 
must  be  presumed  it  was  in  that  sense  tliey  were  used,  and  un- 
derstood by  the  bystanders  wlio  heard  them,  unless  other 
words  are  used  at  tlie  same  time  which  limit  or  qualify  the  or- 
dinary meaning  of  the  slanderous  words  used;  and  a  defend- 
ant, when  sued,  cannot  excuse  his  guilty  conduct  by  an 
explanation  in  his  testimony,  tliat  he  did  not  use  the  words  to 
impute  the  crime  or  offense  tliereb}^  indicated;  provided,  the 
jury  believe,  from  the  evidence,  that  the  defendant  spoke  the 
words,  as  charged.     Miller  vs.  Johnson,  79  111.,  58. 

§  6.  Charge  of  Fornieation  or  Adultery. — The  court  instructs 
the  Jury,  that  words,  which,  in  their  common  acceptation, 
amount  to  a  charge  of  fornication  or  adultery,  if  spoken  in  the 
presence  of  others,  and  not  spoken  under  privileged  circum- 
stances, or  for  justifiable  ends,  as  explained  in  these  instruc- 
tions, are  slanderous  and  actionable  in  themselves,  and  the  law 
will  imply  malice  from  the  mere  speaking  of  such  words. 
SchmisseuT  vs.  Kreilieh,  92  111.,  347;  Dufresne  vs.  Weise,  46 
Wis.,  290;  Bolt  vs.  Budwig,  28  K  W.  Rep.,  282. 

The  words,  etc.,  charged  in  the  declai-ation,  do  amount  to  a 
charge  of  fornication  or  adultery;  and  if  the  jury  believe  that 
the  defendant  uttered  those  words  of  and  concerning  the 
plaintiff,  in  the  presence  and  hearing  of  others,  as  charged  in 
the  declaration,  the  jury  should  find  the  defendant  guilty. 

STATUTE  OF  LIMITATIONS  PLEADED. 

§  7.  Charge  of  Dishonesty. — If  the  jury  believe,  from  the 
evidence,  that  at  or  about  the  time  charged  in  the  declaration, 
the  plaintiff  was  engaged  in  the  business  of,  etc.,  and  that  the 
defendant,  in  a  conversation  with  the  plaintiff,  in  the  presence 
and  hearing  of  other  persons,  within  {one  year)  before  the 
commencement  of  this  suit,  said  to  the  pilaintiff,  "  You  are  a 
rascal;  yon  have  put  your  property  out  of  your  hands  to  cheat 
your  creditors  out  of  their  pay,"  and  that  this  was  said  with 
an  intent  to  charge  the  plaintiff'  with  having  fraudulently  con- 
veyed his  property  witli  intent  to  defraud  his  creditors,  or  to 


500  SLAXDEK  AND    LI  TEL. 

hinder  or  delay  tliem  in  tlie  collection  of  their  just  debts,  then 
the  jury  should  find  the  defendant  guilty,  and  assess  the  plaint- 
ifif's  damages  at  what  they  think  is  jnst  and  right,  under  the 
evidence  in  this  case.  Cooley  on  Torts,  202;  Nelson  vs.  Bor- 
chenius,  52  111.,  236;  PhilUps  vs.  Jloefer,  1  Penn.  St.,  62; 
F'dzgerrold  vs.  Hedfield,  51  Barb.,  484;  On-  vs.  Skojield,  56 
Me.,  483. 

If  the  jury  believe,  from  the  evidence,  that  at  or  about  thc! 
time  stated  in  the  declaration  the  plaintitf  was  engaged  in  the 
business  of,  etc.,  and  that  the  defendant,  in  a  conversation  with 
the  plaintiff,  in  the  presence  and  hearing  of  other  persons,  and 
within  {o7ie  yea)')  before  the  commencement  of  this  suit,  said  to 
the  plaintiff,  "  You  have  put  your  property  out  of  your 
hands,"  etc.,  and  that  these  words  were  spoken  without  quali- 
fication by  other  language  or  circumstances,  sliowing  that  the 
defendant  did  not  intend  the  natuial  and  ordinary  meaning  of 
the  words  used,  then  the  jury  should  find  the  defendant 
guilty,  and  assess  the  plaintiff's  damages  at  what  they  deem  to 
be  right  and  proper  under  the  evidence. 

Words  spoken  of  another  which,  in  their  common  accepta- 
tion, charge  him  witli  selling  or  disposing  of  his  property  with 
an  intent  to  defraud,  hinder  or  de^ay  his  creditors  of  their  just 
debts,  are  actionable  in  themselves  without  showing  special 
damage  arising  therefrom.  The  law  will  imply  both  malice 
and  damage  from  the  speaking  of  such  words,  if  the  jury 
believe,  from  the  evidence  that  such  words  were  spoken,  as 
charged  in  the  declaration. 

§  8.  Charge  of  Arson  by  Tnnuenflo. — The  court  instructs  the 
jury,  that'if  they  believe,  from  the  evidence,  that  before  the 
time  when  the  slanderous  words  are  chai-ged  to  have  been 
spoken,  the  defendant's  dwelling  house  had  been  burned,  and 
that  afterwards,  and  within  {one  year)  before  the  commence- 
ment of  this  suit,  the  defendant,  in  the  presence  and  hearing 
of  third  persons,  spoke  the  words,  "She  burned  my  house  up," 
or  the  words,  "I  have  got  rid  of  my  old  house  burner,"  or  the 
words,  "She  is  an  old  house  Imrner;"  and  if  the  jury  further 
believe,  from  the  evidence,  lliat  in  the  speaking  of  said  words, 
the  defendant  intended  to  convey  the  idea  and  to  charge  that 
the    plaintiff   had  willfully  and   feloniously  burned    the  said 


SLAKDEK  AND    LIUEL.  501 

house  of  defendant,  and  tluit  the  peisons  liearing  tlic  laniruage 
so  understood  him,  then  the  speaking  of  such  words  would  be 
slanderous,  and  the  jury  should  liud  the  defendant  guilty. 

§  9.  Charge  of  Murder,  by  Innuendo.— If  the  jury  believe, 
from  the  evidence,  that  the  defendant,  within  {one  yea?')  be- 
fore the  commencement  of  this  suit,  in  speaking  of  and  con- 
cerning the  plaintiff,  spoke  the  words,  "  She  killed  my  father,'' 
in  the  presence  and  hearing  of  third  persons ;  and  further,  that 
in  speaking  these  words,  the  defendant  intended  to  charge  the 
plaintiff  with  having  willfully  and  feloniously  caused  the  death 
of  defendant's  father,  then  such  words  were  slanderous,  and 
tlie  jury  should  find  for  the  plaintiff. 

§  10.  Words  Must  be  Proved  as  Charged. — The  jury  are  in- 
structed, that  to  entitle  the  plaintiff'  to  recover  in  this  suit,  lie 
nmst  prove  the  speaking  of  the  words  alleged  in  the  declaia- 
tion;  other  words  of  like  meaning,  or  equivalent  words  or 
expressions,  will  not  sutfice. 

Though  the  jury  may  believe,  from  the  evidence,  that  the 
defendant  spoke  words  which  are  equivalent  to  the  words 
charged  in  the  declaration,  and  which  convey  the  same  mean- 
ing, still,  if  the  jury  further  believe,  from  the  evidence,  that 
the  words  proved  are  not,  substantially,  the  same  words  as  tliose 
charged  in  the  declaration,  then  the  plaintiff  is  not  entitled  to 
recover.     JFlinn  vs.  Barlow^  16  111.,  39. 

The  plaintiff  is  not  entitled  to  recover  upon  the  proof  of 
the  sjeaking  of  words  which  are  only  similar  to,  or  have  the 
same  meaning  as,  the  words  charged  in  the  declaration,  but 
are  not  the  same  words.  She  can  only  recover  upon  proving 
the  speaking  of  the  material  words  of  some  one  or  more  of 
the  slanderous  statements  charged  in  the  declaration,  precisely 
as  therein  charged.      WMaoe  vs.  Dixon,  82  111.,  202. 

The  burden  of  ])roof  in  this  case  is  upon  the  plaintiff,  and 
to  entitle  her  to  recover,  it  is  incumbent  on  her  to  prove,  by  a 
preponderance  of  all  the  evidence,  that  the  defendant  spoke 
of  and  concerning  the  plaintiff"  the  slanderous  charges,  or  some 
one  or  more  of  the  slandei'ous  charges,  contained  in  lier  dec- 
laration, in  the  precise  words  and  language  in  which  they 
are  therein  set  forth. 


502  SLAKDER  AND    LIBEL. 

And  if  the  jurv  believe,  from  all  the  evidence  in  the  caeo, 
that  the  plaintiff  lias  failed  to  establish  the  speaking  of  such 
Avords,  by  a  preponderance  of  all  the  evidence,  then  the  jni'V 
should  find  the  defendant  not  guilty. 

Proof  of  the  speaking  of  the  following  words  {a7}y  words 
different  from  those  charged  in  the  declaratioii) — if  the  jury 
find,  from  the  evidence,  tliat  the  speaking  of  such  words  lias 
been  proven — does  not  prove  any  of  the  charges  laid  in  the 
declaration  in  this  case. 

In  an  action  for  slander,  so  many  of  the  words  complained 
of  must  be  proved  as  will  establish  the  slander,  in  the  precise 
words  charged  in  the  declaration;  other  words  of  similar  im- 
port, or  equivalent  words,  if  proved,  will  not  sustain  the 
action. 

§  11.  Words  not  Spoken  l^Ialieionsly. — The  jury  are  instructed, 
that  to  constitute  slander,  it  is  not  necessary  that  a  person 
should  intend  to  make  a  false  charge;  the  real  test  is,  did  the 
speaker  intend  by  the  words  used,  to  make  the  charge  alleged 
in  the  declaration,  did  the  hearers  understand  that  he  so 
intended,  and  was  the  charge  false?  Shull  vs.  Haynwnd,  23 
Minn.,  QQ. 

An  action  for  slander  will  not  lie,  for  words  spoken  under 
such  circumstances  as  would  lead  persons  present  to  believe 
that  they  were  not  spoken  as  truth,  and  were  not  intended  by 
the  speaker,  or  understood  by  the  hearers,  as  intended  to  con- 
vey tlie  charge  complained  of  in  the  declaration;  and  in  this 
case,  though  the  jury  may  believe,  fi'orn  the  evidence,  that 
the  defendant  did  speak  the  slanderous  words  charged  in  the 
declaration,  still  if  the  jury  further  believe,  from  the  evidence, 
and  the  facts  and  circumstances  proved  on  the  trial,  that  the 
defendant  did  not  intend  to  impute,  and  the  hearers  did  not 
understand  him  to  impute,  to  the  plaintiff,  the  offense  which 
the  words  might,  under  other  circumstances,  naturally  import, 
then  the  jury  should  find  the  defendant  not  guilty. 

Though  the  jury  may  believe,  from  the  evidence,  that  the 
slanderous  words  were  spoken  as  alleged  in  ]ilaintiff's  declara- 
tion, still,  if  the  jury  further  believe,  from  the  evidence,  that 
the  words  were  not  s])oken  maliciously,  and  that  the  cliaracter 
of  the  plaintiff' has  not  been  injured  thereby,  then  the  jury  are 


SLANDER  AND    LIBEL.  603 

at  liberty  to  bring  in  a  verdict   for  the  plaintiff  for   nominal 
damages  only. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
in  speaking  the  words  charged,  was  not  actuated  by  malice, 
but  simply  rejieated  them  as  something  lie  had  lieard  from 
others,  and  without  any  malice  towards  the  plaintiff,  and  did 
not  intend  to  be  nnderstood  as  imputing  any  offense  to  lier, 
then  the  jury  should  find  for  the  defendant.  And  it  is  a  ques- 
tion for  the  jury  to  determine  from  all  the  facts  and  circum- 
stances proved,  and  from  all  the  evidence  in  the  case,  whether 
the  defendant  did  thus  repeat  the  words,  and  whether  he  acted 
maliciously  in  so  doing.  Cuiniaerfoi'd  vs.  McAvoy,  15  III., 
311. 

§  12.  Anger  no  Justification. — The  court  instructs  the  jury, 
that  anger  is  not  a  justification  for  the  use  of  slanderous  words, 
and  it  ought  not  to  be  considered,  even  in  mitigation  of  dam- 
ages, unless  the  anger  is  provoked  by  the  very  person  against 
whom  the  slanderous  words  are  used.  Janch  vs.  Janch^  60 
Ind.,  135. 

In  this  case,  if  the  jury  believe,  from  the  evidence,  that  the 
defendant  spoke  of  the  plaintiff,  any  of  the  slanderous  words 
charged  in  the  declaration,  then  it  matters  not  who  commenced 
the  conversation,  or  that  the  defendant  was  angi-y  at  the  time, 
unless  his  anger  was  wrongf ull}^  provoked,  in  whole  or  in  part, 
by  the  acts  or  language  of  the  pilaintiff  herself. 
^  If  the  jury  believe,  from  the  evidence,  that  the  defendant 
spoko  in  the  presence  and  hearing  of  others,  of  and  concern- 
ing the  plaintiff,  the  slanderous  words  charged  in  the  declara- 
tion, then  it  is  immaterial  whether  the  words  were  uttered 
with  or  without  anger  or  passion  on  the  part  of  the  defend- 
ant, unless  the  jury  further  believe,  from  the  evidence,  that 
such  passion  was  wrongfully  caused  or  provoked  by  the  ];)laint- 
iff;  and  even  in  such  ease,  anger  or  passion  would  be  no  jus- 
tification, it  could  only  be  considered  by  the  jury  in  mitigation 
of  damages,  in  case  they  find  the  plea  of  justif'cition  not  estab- 
lished by  a  preponderance  of  testimony,  and  find  the  defendant 
guilty.     Bolt  vs.  Budwig,  28  N.  W.  Eep.,  282. 

§  13.  Anger  in  Mitigation,  When. — The  jury  are  instrnclcd, 
thafi  while  it  is  true,  that  angar  or  passion  is  not  a  justilicati<.)n 


50i  SLAXDER  AND    LILEL. 

for  the  nsG  of  slanderous  words,  or  cveu  a  mitigating  circum- 
stance, unless  provoked  by  the  ]jersou  against  whom  the  slan- 
derous words  are  spoken,  yet,  if  the  party  com[)laining  does 
wrongfully  provoke  such  anger,  the  fact  may  be  taken  into 
account  and  considered  by  the  jury  in  fixing  the  amount  of 
their  verdict,  in  case  they  tind  the  defendant  guilty.  Free- 
man vs.  2'insleyy  bO  111.,  49-± ;  McCllntocJc  vs.  C'/v'cX",  4  la., 
453. 

Though  the  jury  may  believe,  from  the  evidence,  that  some 
of  the  slanderous  words,  charged  in  the  ('eclaiation,  were 
uttered  by  the  defendant,  as  charged,  still,  if  the  jury  further 
believe,  from  the  evidence,  that  the  words  were  spoken  in  Xhh 
heat  of  passion,  during  a  quarrel  between  the  defendant  on 
one  side,  and  the  plaintiff  and  one  A.  B.  on  the  other,  and 
that  in  the  course  of  such  altercation,  the  said  A.  B.  and  the 
said  plaintiff,  without  cause  or  provocation  on  the  part  of  the 
defendant,  used  violent  and  abusive  language  against  the 
defendant,  and  called  him  vile  names,  calculated  to  provoke 
the  passions,  and  that  the  slanderous  words  were  used  by 
defendant  while  laboring  under  excitement  and  passion,  caused 
by  such  aljuse,  then,  while  it  is  true  that  these  facts  do  not 
constitute  a  defense  to  the  action,  if  proved,  they  are  proper 
to  be  taken  into  considei'ation  by  the  jury  as  mitigating  cir- 
cumstances on  behalf  of  the  defendant. 

§  14.  Slanderous  Words  Explained. — Although  the  jury  may 
believe,  from  the  evidence,  that  the  defendant,  in  sj)eaking  of 
the  plaintiff",  U[:on  the  occasion  referred  to  by  the  witnesses, 
did  say  ("You  are  a  thief,  you  stole  my  corn'');  still,  if  the 
jury  further  believe,  from  the  evidence,  that  he  accompanied 
that  charge  with  such  explanations  as  Avouid  show  to  the  by- 
stan  lers,  who  lieard  the  conversation,  that  he  only  meimt  to 
charge  the  defendant  with  a  trespass,  and  not  with  a  crime  of 
larceny,  then,  so  far  as  that  chai-ge  is  concerned,  the  jury 
should  find  for  the  defendant.  Mitchell  vs.  Strong,  17  III, 
597. 

Though  the  jury  may  believe,  from  the  evidence,  that  the 
defendant  did  speak  some  of  the  slanderous  words  complained 
of,  still,  if  the  jury  further  believe,  from  the  evidence,  that 
the  defendant  in  the  same  conversation,  and  in  presence  of  the 


SLANDER  AND    LIBEL.  505 

same  persons,  voliuitarilj  and  in  good  faith,  recalled  or  took 
back  the  slanderous  language,  or  qualified  such  slanderous 
words,  so  that  the  persons  present  would  clearly  understand, 
from  the  wliole  conversation,  that  the  offense  of  {larceny)  was 
not  imputed  or  charged  upon  the  plaintiff,  then  such  slander- 
ous words  will  not  afford  the  plaintiff'  anj  ground  of  action  in 
this  case. 

PLEA  OF  JUSTIFICATION  FILED. 

§  15.  All  the  Words  Need  not  be  Proved. — The  court  in- 
structs the  jnry  that  the  plaintiff  is  not  bound  to  prove  the 
s[)eaking  of  all  the  words  charged  in  the  declaration;  if  tlie 
jury  believe,  from  the  evidence,  that  the  defendant  si)oke  of 
and  concerning  the  plaintiff,  in  the  presence  of  others,  any  of 
tlie  slanderous  Nvords  charged  in  the  declaration,  the  fair  im- 
port of  which  would  be  to  charge  the  plaintiff"  with  the  crime 
of  {larceny),  then  he  is  entitled  to  a  verdict,  unless  the  defend- 
ant has  estab'ished  the  truth  of  his  plea  of  justification,  by  the 
evidence,  in  the  minds  of  the  jury,  beyond  any  reasonable 
doubt  {or  hy  a  preponderance  of  the  evidence). 

§  16.  Plea  of  Justification,  How  Proved. — The  court  instructs 
the  jury,  as  ;  matter  of  law,  that  where  a  plea  of  justification, 
in  an  action  for  slander,  accuses  the  plaintiff"  of  a  crime,  the 
defendant,  in  order  to  sustain  the  plea,  must  prove  the  guilt 
of  the  plaiiiriff",  as  charged  in  the  plea,  beyond  a  reasonable 
doubt.  So  far  as  the  degi-ee  of  proof  is  concerned,  the  plaint- 
iff" occupies  the  same  position  as  if  he  were  on  trial  upon  an 
indictment  for  the"  off"ense  charged.  Merk  vs.  Gelzhaenser, 
50  Cal.,  631;  Corhleyy^.  Wilson,  71  111.,  209. 

The  court  instructs  the  jury,  that,  in  this  case,  the  plea  of 
justification  alleges  that  the  plaintiff  was  guilty  of  the  crime 
of  {perjury),  and  to  prove  the  truth  of  that  plea,  it  is  incum- 
bent upon  the  defendant  to  prove  everything  requisite  to 
constitute  the  crime  of  {^-perjury)  beyond  a  reasonable  doubt. 
Barton  ^^.Thompson^Ai'o  la.,  30;  Mott  vs.  Dawson,  4:Q  la.,  533. 

The  court  further  insti-ucts  the  jury,  as  a  matter  of  law, 
that  in  order  to  sustain  his  plea  of  justification,  in  this  case,  it 
is  incumbent  upon  the  defendant  to  prove,  to  the  satisfaction 


506  SLANDEK  AND    LIBEL. 

of  the  jury,  beyond  all  reasonaVe  doubt,  tliat  the  ])]aintiff  was 
guilty  of  the  crime  of  {perjury),  as  alleged  in  said  ]Dlea. 

Among  the  other  things  necessary  for  the  defendant  to 
prove,  to  the  satisfaction  of  tlie  jui'}',  in  order  to  maintain  tl  e 
])lea  of  justification,  in  tliis  case,  is  the  fact  tluit  the  plaintiff, 
before  he  testified  as  a  witness  in  the  case  of  E.  v.-.  S.,  referred 
to  b}'-  the  witnesses,  was  sworn  to  testify  to  the  truth,  the 
wliole  truth  and  nothing  but  the  truth,  by  some  officer  au- 
thorized by  law  to  aiminister  the  oath.  And  if  the  jury  find, 
from  the  evidence,  that  tlie  defendant  has  failed  to  prove  that 
fact  upon  this  trial,  beyond  a  reasonable  doubt,  then,  as  a 
matter  of  law,  tlie  justification  is  not  made  out. 

Contra:  The  court  instructs  the  jury,  that  if  they  believe, 
from  the  evidence,  that  the  plaintiff  was  guilty  of  the  crime  of 
{perjury),  in  manner  and  form  as  charged  in  the  plea  of  justifi- 
cation, filed  in  this  case,  then  the  jury  should  find  for  the  de- 
fendant. 

In  order  to  sustain  the  plea  of  justification,  it  is  not  neces- 
sary that  the  defendant  should  establish  the  truth  of  that  plea 
beyond  a  reasonable  doubt;  it  is  sufficient  if  it  is  established  by 
a  preponderance  of  the  evidence.  Coolcy  on  Toi-ts,  208; 
Elliott  vs.  Yan  Buren,  33  Mich.,  49;  Blaeser  vs.  Milwaukee, 
etc.,  37  Wis.,  31 ;  Knowles  vs.  Scrihier,  57  Me.,  495 ;  lioths- 
child  vs.  Am.  Cent.  Ins.  Co.,  62  Mo.,  356 ;  Burr  vs.  Wilson, 
22  Minn.,  206  ;  Jones  vs.  Graves,  26  Ohio  St.,  2. 

The  jury  are  further  instructed,  that  though  they  believe, 
from  the  evidence,  that  the  plaintiff  did  testify,  on  the  trial  of 
E.  vs.  S.,  that  the  trees  in  question  were  on  the  north  side  of 
tiie  hedge,  that  fact  will  not  be  sufficient  to  maintain  the  de- 
fendant's plea  of  justification,  unless  the  jury  further  be'ieve, 
from  the  evidence,  that  the  question  of  the  location  of  said 
trees,  with  reference  to  said  hedge,  was  a  material  question  in 
the  trial  of  said  cause;  and,  also,  that  the  plaintift' knowingly 
and  willfully  testified  to  what  he  knew  to  be  untrue  in  that 
particular. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff 
was  called  as  a  witness  in  the  case  of  E  vs.  S.,  and  that,  be- 
fore testifying,  he  has  sworn  by  {some  officer  anthorizecJ  to  ad- 
minister oaths)  to  tell  the  truth,  the  whole  truth  and  nothing 
but  the  trutli,  and  that  upon  said  trial  the  said  ])laintiff  know- 


SLANDER  AND    LICEL.  507 

iiigly,  willfully  and  falsely  testified  that  the  trees  in  question 
were  on  the  soutli  side  of  a  hedge,  and  that  the  question  of 
the  location  of  said  trees,  in  reference  to  said  hedge,  was  a 
material  question  on  the  trial  of  said  cause,  then  the  defense 
of  justification  is  made  out,  and  the  juiy  should  find  for  the 
defendant. 

The  court  further  instructs  the  Jury,  that  if  they  believe, 
from  the  evidence,  that  the  plaintiff  w^as  sw^orn  by,  etc.,  to  tell 
the  truth,  the  whole  "truth  and  nothing  but  the  truth,  and 
that  he  swore  to  the  statements  set  forth  in  the  defendant's 
plea  of  justification,  and  that  in  so  swearing  he  knowingly  and 
willfully  swore  to  what  was  not  true,  and  that  such  testimony 
was  material  upon  the  trial  of  the  suit  of  E.  vs.  S.^  then,  and 
in  that  case,  the  defendant  would  be  justified  in  telling  the 
plaintiff  that  he  swore  falsely  on  that  trial,  or  that  he  swore  to 
a  lie  on  that  trial. 

§  17.  Wlien  the  Plea  Does  not  Impute  Crime. — The  court  in- 
structs the  jury,  that  it  is  sufficient  for  the  defendant  to  estab- 
lish his  plea  of  justification  by  a  preponderance  of  evidence; 
and  if  the  jury  believe,  from  the  evidence,  that  the  defend- 
ant's plea  of  justification,  in  this  case,  has  been  proved  by  a 
preponderance  of  evidence,  the  jury  should  find  the  defendant 
not  guilty,  although  they  find  that  the  defendant  spoke  the 
words  alleged.  The  law  does  not  require  the  truth  of  such  a 
plea  to  be  established  beyond  a  reasonable  doubt. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
spoke  and  published  of  and  concerning  the  plaintiff  the  al- 
leged slanderous  words,  in  manner  and  form  as  charged  in  the 
declaration,  then  the  jury  should  find  the  defendant  guilty,  un- 
less they  further  find,  from  the  evidence,  that  the  defense  of 
justification,  set  up  in  the  defendant's  plea,  has  been  estab- 
lished on  this  trial,  by  a  preponderance  of  the  evidence. 

The  court  further  instructs  the  jurj^,  that  if  they  believe, 
from  the  evidence,  that  the  defendant  spoke  and  ]Hiblished  of 
and  concerning  the  plaintiff  the  slanderous  words  chajged  in 
plaintiff's  declaration,  in  manner  and  form  as  therein  stated, 
then  the  law  will  imply  malice  and  a  consequent  mjury,  unless 
the  jury  further  find  that  the  defense  of  jastitication  has  been 
established  by  a  preponderance  of  evidence. 


508  SLAXDEK  AA'D    LILiEL. 

§  18.  Plea  of  Jmtlflcation  in  Good  Faith. — Tlic  court  nislinets 
the  lury,  that,  altlioiigli  the j  should  tiud,  from  llie  evidence, 
that  ihe  defendant  in  this  case  has  not  sustained  his  plea  of 
justification,  still,  the  fact  thi  he  lias  lied  such  plea  must 
not  of  itself  he  regarded  hj  the  jury  as  evidence  of  malice  on 
the  part  of  the  defendant.     Ilarover  vs.  Ilarover  78  111.,  412. 

The  court  instructs  the  jury,  that  if  they  believe,  from  the 
evidence,  that  the  jiroof  offered  by  defendant  to  sustain  his 
p'ea  of  justification,  tended  to  ])rove  said  plea,  then  they 
should  consider  that  circumstance  in  arriving  at  tlieir  conclu- 
sion, as  to  whether  the  said  plea  was  filed  in  good  faith  by  the 
defendant,  and  with  the  belief  that  he  could  sustain  the  same 
by  evidence. 

r 

§  19.  Office  of  the  Plea  of  Jnstifioation. — The  court  instructs 
the  jury,  that  in  this  state  a  defendant  has  a  right  to  file  as 
many  pleas  as  he  deems  necessary  for  his  defense,  and  it  is  no 
objection  that  the  pleas  are  inconsistent  with  each  other;  each 
plea  stands  by  itself  and  forms  a  distinct  issue. 

And  in  this  case,  the  fact  that  defendant  has  filed  a  plea 
justifying  the  speaking  of  the  words  charged,  does  not  relieve 
the  plaintiff  from  the  necessity  of  proving  the  speaking  of  the 
M-ords  alleged.  The  plea  of  justification  cannot  be  used  to 
convict  the  defendant;  he  is  not  bound  to  make  his  defense 
till  there  is  evidence  showing  his  guilt.  Fariiaii  vs.  Childs, 
66  111.,  541:. 

§  20.  Repeating  Report. — If  the  jury  believe,  from  the  evi- 
dence, that  the  defendant  is  guilt}^  of  sjieaking  the  slanderous 
words  charged  in  the  declaration,  then  the  fact,  if  proved, 
tliat  defendant  gave  the  statement  as  a  report  in  the  neighbor- 
hood, and  mentioned  his  authority  for  the  statement,  would 
not  exonei'ate  him  from  liability.  Fowlei'  vs.  Chicheste?'.  26 
Ohio  St.,  9. 

The  jury  are  instructed,  that,  although  they  may  believe, 
from  the  evidence,  that  the  defendant  spoke  the  slanderous 
words,  charged  in  the  declaration,  of  and  concerning  the  plaint- 
iff, yet,  if  the  jury  further  believe,  from  the  evidence,  that  the 
defendant  did  not  originate  the  slander,  tiiat  he  merely  re. 
ported  what  some  one  else  had  said  to  him,  or  in  his  presence, 


SLANDEK  AND    LIBEL.  509 

and  that  lie  acted  witliout  malice  in  repeating  it,  and  that  the 
])lainti!f  was,  in  reality,  in  no  manner  injured  by  the  slander, 
then  the  jury  may  give  nominal  damages  only. 

LIBEL. 

§  21.  Libel  Defined. — The  court  instructs  the  jury,  as  a  mat- 
ter of  law,  that  a  libel  may  be  defined  to  be  a  malicious  de- 
famation, expressed  either  by  printing,  writing,  or  by  signs  or 
pictures  tending  to  blacken  the  memory  of  one  who  is  dead, 
or  to  impeach  the  integrity,  honesty,  virtue  or  reputatiim  of 
one  who  is  alive,  and  thereby  expose  him  to  public  liatred, 
contempt  or  ridicule,  or  pecuniary  injury. 

That  every  publication  by  writing  or  printing,  which  falsely 
charges  upon,  or  imputes  to  any  one  a  crime  which  renders 
him  liable  to  punishment,  or  which  alleges  against  him,  that 
which  is  calculated  to  make  him  infamous,  odious  or  ridicu- 
lous in  public  estimation,  \%  jprima  facie  a  libel,  and  malice  is 
implied  from  the  publication  against  the  publisher  thereof. 

The  jury  are  instructed,  that  conductors  and  publishers  of 
newspapers  are  not  privileged  to  publish  libel  in  the  dissemi- 
nation of  news,  but  are  liable  for  libelous  publications,  like  other 
]iersons,  without  proof  of  ex])ress  malice  or  actual  ill-w^ill 
against  the  person  libeled. 

§  22.  Malice  Defined. — Malice,  or  the  term  malicious,  used 
in  the  statute  defining  libel,  means  a  wrongful  act  done  in- 
tentionally without  just  cause  or  excuse,  and  the  law  presumes 
a  malicious  motive  for  making  a  charge  which  is  false  and 
injurious,  when  no  justifiable  motive  appears.  There  is  also 
malice  in  fact,  that  is,  an  actual,  spiteful,  malignant  or  revenge- 
ful disposition,  or  ill-will  against  another.  If  the  jury  believe, 
from  the  evidence,  that  the  defendant  published,  etc.,  and 
that  the  publication  was  injurious  in  itself  and  without  excuse 
or  justification,  as  explained  in  the  instructions  upon  that 
point,  then  the  law  implies  malice;  and  if  there  was  actual  in- 
tention in  the  publication  to  injure  the  plaintiff,  then  there 
was  malice  in  fact,  if  there  was  no  lawful  justification. 

Any  unlawful  act  done  willfully  to  the  injury  of  another  is, 
as  against  that  person,  malicious,  and  it  is  not  necessary  that 


510  SLANDEK  AND    LIBEL. 

the  doer  of  sncli  act  should  have  ill-will  or  pursue  auj-  general 
bad  designs,  in  order  to  make  him  liable  for  such  unlawful 
acts;  and  in  order  to  constitute  malice  in  the  publisher  of  a 
libel,  it  is  not  necessai-y  that  the  publisher  should  have  personal 
ill-will  towards  the  person  libeled,  and  an  article  published 
against  one  in  a  newspaper,  if  false  and  defamatory,  is  action- 
able, though  the  editor  believed  it  to  be  true,  and  acted  in 
good  faith  ;  and  the  law  will  imply  malice  from  the  publication 
of  such  false  and  defamatory  article, 

§  23.  Damages  Presumed,  When. — That  language  published 
about  any  one,  imputing  an  indictable  offense,  or  fraud  or 
swindling  or  dishonesty  in  a  particular  transaction,  or  want  of 
integrity,  is  actionable  without  proof  of  special  damage,  and 
damage  is  presumed  in  such  case.  If,  therefore,  the  jury 
believe,  from  the  evidence,  that  the  defendant  published  of 
and  concerning  the  plaintiff  the  language  alleged  in  the  dec- 
laration, at  the  time  alleged,  and  that  such  language  imputed 
to  said  plaintiff  the  offense  or  charge  of  dishonesty,  swin- 
dling or  of  fraud,  and  that  the  plaintiff  suffered  injury  by 
reason  of  said  publication  in  his  person,  reputation,  feelings  or 
business,  and  that  no  excuse  or  justification,  as  explained  in 
these  instructions,  has  been  shown  in  evidence,  then  the  jui*y 
could  find  the  defendant  guilty. 

The  law  implies  damages  from  the  publication  of  libelous 
words,  without  special  proof  of  damages,  and  it  also  implies 
that  the  person  who  publishes  the  libel,  intends  the  injury 
which  the  libel  is  calculated  to  produce. 

If,  therefore,  the  jury  find,  from  the  evidence,  that  the  de- 
fendant published  the  libel,  or  libels,  charged  in  the  declara- 
tion, and  that  they  were  calculated  to  injure  the  plaintiff,  by 
exposing  him  to  ridicule  and  contempt,  shame  or  disgrace,  or 
to  injuriously  affect  his  reputation  in  the  community,  as  to 
honesty  and  integrity,  then,  unless  justification  is  proved,  the 
jury  ought  to  find  the  defendant  "guilty." 

§  24.  Plea  of  Justification  Filed . — If  the  jury  believe,  from 
the  evidence,  that  the  defendant  published  the  libel,  as  charged 
in  i)laintift"'s  declaration,  and  that  he  has  failed  to  show,  by  a 
preponderance  of  evidence,  the  truth  of   the  charges  made 


SLANDER  AND    LIBEL.  511 

against  the  plaintiff,  in  tlie  pica  of  justification,  tliun  tlio  jury 
blioiild  lind  a  verdict  for  plaintiff,  and  assess  liis  daninges  at 
siicli  a  sum  as  tlie  jury  believe,  from  tlie  evidence,  the  plaint'tf 
ought  to  recover,  not  exceeding  the  amount  claimed  in  tlie 
declaration. 

The  court  instructs  the  jury,  that  if  they  believe,  from  the 
evidence,  that  ])laintiff  has  proved  the  publication,  as  charged 
in  his  declaration,  and  that  defendant  has  failed  to  })rove,  by 
a  preponderance  of  evidence,  the  truth  of  the  plea  of  justili- 
cation,  as  pleaded  by  him,  then,  and  in  such  case,  the  jury 
should  render  their  verdict  in  favor  of  the  plaintiff  for  such 
an  amount  as  they  should  believe,  from  the  evidence,  he  is 
entitled  to  recover. 

If  you  believe,  from  the  evidence,  that  the  defendant  com- 
posed and  published  the  printed  article  in  plaintiff's  declara- 
tion mentioned  and  set  out,  as  therein  stated,  then  the  jury 
should  Und  the  defendant  guilty,  unless  they  further  believe, 
from  the  evidence,  that  the  charges,  statements  and  insinua- 
tions in  said  printed  article  are  true,  as  stated  in  defendant's 
plea. 

§  25.  Malice  Presumed.  Wlien. — If  tlie  jury  believe,  from 
the  evidence,  that  defendant  ])ublished  the  libel  of  and  con- 
cerning the  plaintiff,  as  charged  in  plaintiff''8  declaration,  then 
the  law  presumes  malice  on  the  part  of  the  defendant  against 
the  plaintiff,  and  it  rests  upon  the  defendant  to  rebut  this  pre- 
sumption of  malice,  and  if  he  has  not  done  so,  by  a  prepon- 
derance of  evidence,  then  tlie  jury  should  find  for  the 
plaintiff,  unless  they  believe,  from  the  evidence,  the  truth  of 
the  facts  stated  in  the  plea  of  justification,  filed  by  defendant. 

§  26.  How  the  Wonls  Are  to  be  Understood. — That  the  words 
alleged  to  be  libelous  are  to  be  taken  in  the  sense  that  is  most 
natural  and  obvious,  and  in  that  sense  in  which  those  persons 
to  whom  the  publication  should  c:)me,  would  be  most  likely  to 
understand  them.  It  is  not  necessary  that  the  words  pub- 
lished should  charge  any  specific  crime  or  act  of  dishonesty  in 
direct  terms,  but  if  the  necessary  inference  to  be  drawn  from 
the  language  used,  is  a  chai-ge  of  an  indictable  offense  or  an 
act  of  dishonesty,  taking  the  words  in  their  usual  and  ordinai-y 
meaning,  then  they  are  actionable. 


512  SLANDEK  AND    LIBEL. 

That  wliere  a  person  receives  information,  wliicli,  if  true, 
is  injurious  to  the  character  of  another,  he  is  not  justified  in 
publishing  that  information  to  the  prejudice  of  that  other  per- 
son, merely  because  he  believes  it  to  be  true  or  because  he  is 
ignorant  of  its  truth  or  falsity. 

It  is  for  the  jury  to  determine,  from  the  evidence,  what  is 
the  meaning  of  the  words  which  are  charged  to  have  been 
published  of  the  plaintiff;  they  are  to  be  construed  in  tlieir 
plain  and  ordinary  sense,  and  are  to  be  taken  to  mean  wliat 
persons  of  ordinary  intelligence  would  reasonably  take  them 
to  mean. 

The  declaration  alleges,  in  the  first  count,  that  the  words 
alleged  meant  that  plaintiff,  for  several  mouths,  had  wrong- 
fully, fraudulently  and  dishonestly,  and  with  intent  to  cheat, 
refused  to  pay  rent  to  B.  In  order  to  sustain  the  defense  of  a 
justification  under  this  count,  the  jury  must  be  satisfied,  from 
the  evidence,  that  plaintiff's  refusal  or  omission  to  pay  rent 
due,  if  there  was  such  refusal  and  such  rent  due,  was  wrongs 
ful,  fraudulent,  dishonest  and  with  intent  to  cheat  B.  out  of 
the  rent. 

In  the  second  count  of  the  declaration  it  is  alleged  that  the 
words  mentioned  meant  to  charge  that  plaintiff",  as  a  tenant, 
was  dishonest,  and  was  one  who  would  cheat  and  defraud  a 
landlord.  This  relates  to  plaintiff's  character  as  a  tenant, 
and,  in  order  to  justify  the  charge  imputed  in  these  words, 
the  jury  must  be  satisfied  from  the  evidence,  that,  in  respect 
to  plaintiff's  dealings  with  B.  in  the  matter  of  the  tenancy, 
plaintiff  is  shown  to  have  been  dishonest  and  intending  to 
cheat  and  defraud  B.,  as  his  landlord. 

§  27.     Plea  of  Justification  an  Aggravation  of  Damages,  Wlicn. — 

If  the  jury  believe,  from  the  evidence,  that  the  plea  of  justi- 
fication in  this  case  was  not  filed  in  good  faith,  and  with  an 
honest  expectation  that  the  same  could  be  proved,  but  was 
resorted  to  for  the  purpose  of  injuring  the  plaintiff,  then,  if 
the  jury  find  defendant  guilty,  they  may  regard  the  plea  of 
justification  as  an  aggravation  of  the  original  offense. 

If  the  defendant,  in  this  case,  is  found  guilty  of  publishing 
the  libels,  and  tliat  they  have  the  meaning  imputed  to  the 
words  in  the  declaration,  and  the  attempted  justification  by 


SLANDER  AND    LI;;EL.  513 

the  dcfciulant  is  not  made  out,  tlie  jury  liavc  tlie  right  to 
consider,  from  the  evidence,  whether  the  justification  was 
attempted  in  good  faith,  with  an  honorable  intention  and  ex- 
pectation of  proving  its  truth,  and  if  the  jury  find,  from  the 
evidence,  that  it  was  not  so  pleaded,  then  tlie  attempted  justi- 
fication amounts  to  a  republication  of  the  libel,  and  is  an 
aggravation  of  the  damages. 

§  28.  Not  an  Aggravation  of  Damages,  When. — The  jury  are 
instructed,  that  when  a  plea  of  justification  of  libelous  publi- 
cations is  filed  in  good  faith,  and  with  an  honest  expectation 
that  the  same  can  be  proved,  and  evidence  is  introduced 
honestly,  for  the  purpose  of  supporting  it,  such  evidence  may 
be  considered  by  the  jury  in  mitigation  of  damages,  even 
though  it  be  insufficient  to  prove  the  truth  of  the  plea. 

The  filing  of  a  plea  of  justification  in  this  case  does  not 
necessarily  aggravate  the  damages,  even  though  the  jury  find 
that  it  has  not  been  proved;  provided,  the  jury  further  be- 
lieve, from  the  evidence,  that  defendant  filed  such  plea,  be- 
lieving in  good  faith  that  it  was  true,  and  that  he  could  pro^'e 
it.      Thomas  vs.  Dunaway,  30  111.,  373. 

§  29.  Mitigation  of  Damages. — In  the  event  that  the  jury 
do  not  find  the  plea  of  jiistification  to  be  true,  but  do  find  the 
defendant  guilty,  then  the  jury,  in  estimating  the  amount  of 
plaintiff's  damages,  may  properly  take  into  consideration  such 
facts,  if  any  are  proven,  as  may  tend  to  show  whether  or  not 
the  publication  complained  of  was  made  by  defendant  in  a  hona 
■fide  belief  that  the  publication  was  true.     . 

And  the  jury  may  also  take  into  consideration,  in  the  esti- 
mation of  damages,  any  acts  of  the  plaintiff  connected  with 
the  publication  complained  of,  if  any  such  are  proven,  which 
were  calculated  to  provoke  the  publication. 

§  30.  No  Plea  of  Justification  Filed. — If  the  jury  believe,  from 
the  evidence,  that  the  defendant  published  the  libel,  as  charged 
in  the  declaration,  then  the  plaintiff  is  entitled  to  recover  in 
this  suit. 

The  court  instructs  the  jury,  that  the  evidence  offered  by 
the  defendant,  in  regard  to  plaintiff's  general  character,  is  evi- 
33 


514  SLANDER  AND    LILEL. 

dence,  not  in  justification  of  the  alleged  libel,  but  in  excuse  or 
extenuationj^  and  for  the  purpose  of  diminishing  the  amount 
of  plaintiff's  damages.  If  tlie  plaintiff  lias  proved  the  pnbli- 
c.ition  of  the  libel,  as  alleged,  then  he  is  entitled  to  a  verdict, 
and  the  amount  of  his  damages,  if  any,  is  to  be  determined  by 
all  the  evidence  in  the  case. 

§  31.  General  Issue  Impliedly  Admits,  etc. — In  this  case,  the 
defendants,  by  their  plea  of  not  guilty,  admit  that  the  plaint- 
iff is  not  guilty  of  the  charge  alleged  in  the  libel,  as  set  out  in 
the  declaration. 

The  jury  are  instructed,  that  all  the  evidence  admitted  re- 
garding the  plaintiff's  general  character,  and  the  existence  of 
reports  and  rumors  affecting  it,  was  not  received  for  the  pur- 
pose of  showing  the  plaintiff"  guilty  of  the  matters  referred  to, 
his  innocence  being  admitted  by  the  defendant's  plea  of  not 
guilty;  this  evidence  was  received  in  excuse  and  in  mitigation 
of  the  plaintiff's  damages,  and  for  no  other  purpose. 


CHAPTER  XLII. 
TENDER. 


Sec.     1.  What  constitutes  a  valid  tender. 

2.  Burden  of  proof. 

3.  Tender  as  a  gift  or  present. 

4.  On  condition  of  receipt  in  full. 

6.  WiUingness  to  pay  but  no  tender. 

6.  Acceptance  of  tender. 

7.  Specifying  objections  to  acceptance,  a  waiver,  etc. 

8.  Express  waiver  of  production  of  the  money. 

9.  Tender  must  be  kept  good. 

10.  Tender  after  suit  brought. 

11.  Tender  waived. 

§  1.  What  Constitutes  a  Valid  Teiifler. — As  regards  the  plea 
of  tender  filed  in  this  case,  the  court  instructs  the  jiu-y,  that 
to  constitute  good  tender  of  any  amount  of  money,  it  is  neces- 
sary for  the  ])arty  indebted,  absolutely  and  unconditionally,  to 
oifer  to  pay  to  the  other  party  the  amount  tendered  in  current 
money,  such  as  is  made  a  legal  tender  by  law,  and  actually 
offer  the  money  at  the  time  the  tender  is  claimed  to  have  been 
made  by  producing  the  money  and  showing  it  to  the  person  to 
whom  the  money  is  due,  unless  such  person  waives  the  per- 
formance of,  or  compliance  with,  some  or  all  of  these  condi- 
tions. 3  Greenlf.  Ev.,  §  601,  602;  I^ose  vs.  Duncan,  49  Ind., 
269;  Cot/iran  vs.  Scayilan.  34  Ga.,  555;  Hunter  vs.  Wai'iier^ 
1  Wis.,  141;  Post  vs.  Springstead,  49  Mich.,  90. 

The  court  further  instructs  the  jury,  that  to  have  a  tender 
of  any  avail,  the  amount  tendered  must  be  the  precise  sum,  or 
more  than  the  amount  due,  and  the  tender  must  be  kept  good 
by  bringing  the  money  tendered  into  court  and  depositing  it 
for  the  benefit  of  the  plaintiff.  Pars,  on  N.  &  B.,  621;  Henly 
vs.  Streator,b  Ind., 207;  PillshurywB.  Willoughby,iSl  Me.,  274. 

The  jury  are  instructed,  as  a  matter  of  law,  that  in  order  to 
constitute  a  valid  tender,  the  money  must  be  offered  to,  and 

(515) 


516  TENDER. 

exhibited  in  view  of,  the  person  to  whom  the  tender  is  to  be 
made,  unless  it  appears,  from  a  preponderance  of  the  evidence, 
that  such  person,  by  his  conduct  or  words,  prevented  the 
tender  or  excused  the  exliibition  of  the  money  in  his  sight. 
DicHfiso?iY8.  Iliajes,  IN.  W.  Rep.,  834;  Gui/i?na?iYs.  Kearn, 
8  Neb.,  502;  Pinney  vs.  Jorgenseii^  27  Minn.,  26;  Hoffman  vs. 
Van  Dieman,  62  Wis.,  362. 

Although  the  jury  may  believe,  from  the  evidence,  that 
before  this  suit  was   brought  the  defendant  tendered  to  the 

plaintiff  the  sum   of  % ,  still  such  tender   cannot  avail 

him  here,  unless  the  jury  further  believe,  from  the  evidence, 
that  the  defendant  lias  kept  that  tender  good  by  bringing  the 
money  into  this  court  for  the  use  of  the  plaintiff.  Aulgee  vs. 
Clay,  109  111.,  487. 

To  constitute  a  good  and  sufficient  tender,  the  debtor  must 
offer  to  pay  and  tender  to  the  creditor  the  precise  amount 
which  he  intends  to  pay  and  allow  the  creditor  to  keep;  he 
cannot  offer  the  creditor  more  than  he  admits  is  due  or  intends 
to  pay,  and  require  the  creditor  to  make  change,  and  after 
taking  out  the  amount  tendered  to  himself  pay  over  the  bal- 
ance to  the  debtor. 

§  2.  Burden  of  Proof. — Upon  the  question  of  tender,  the 
court  instructs  the  jury,  that  the  burden  of  proof  is  upon  the 
defendant,  and  to  entitle  him  to  a  verdict  upon  that  issue,  it 
must  appear,  by  a  ]ireponderance  of  the  evidence,  that  the 
defendant,  before  the  commencement,  of  the  suit,  uncondi- 
tionally offered  to  pay  to  the  plaintiff  a  certain  definite  sum  in 
legal  tender  money ;  that  the  money  was  actually  produced 
and  shown  to  the  plaintiff";  that  the  amount  so  tendered  was 
offered  in  payment  of  the  debts  and  demands  sued  on  in  this 
case,  or  in  such  a  way  as  to  cover  these  demands,  and  that  the 
amount  offered  was  equal  to  the  amount  due  upon  the  claims 
upon  which  the  tender  was  made;  and,  further,  that  the 
tender  has  been  kept  good  by  the  payment  of  the  amount  so 
tendered  into  court  for  the  plaintiff;  unless  the  jury  find,  from 
the  evidence  and  under  the  instructions  of  the  court,  that 
some  one  or  more  of  these  requisites  of  a  good  tender  have 
been  waived  or  dispensed  with  by  the  plaintiff,  as  explained  in 
these  instructions.     Pulsifer  vs.  Shepard,  36111.,  513. 


TENDER.  517 

§  3.  Temlor  as  a  Gift  or  Present. — Tliougli  the  jnry  may  be- 
lieve, from  tlie  evidence,  that  upon  the  occasion  referred  to 
by  the  witnesses,   the  defendant  did   produce,  count  out  and 

actually  offer  to   the  plaintiff  the  sum  of  $ ,  still,  if  the 

jury  further  believe,  from  the  evidence,  that  such  offer  was 
accompanied  by  the  statements,  on  the  part  of  the  defendant, 
that  he  owed  the  plaintiff  nothing,  that  he  wonld  make  him  a 
present  of  that  amount  of  money,  etc.  {(ifi>/  wjrds  deiiijbig  the 
indebtedness^  hut  offermg  a  bonus)^  then  this  would  not  con- 
stitute a  tender  of  any  amount  upon  the  demands  involved  in 
this  suit;  and  if  the  jury  further  find,  from  the  evidence,  that 
no  other  tender  has  been  made  by  the  defendant,  then,  upon 
the  question  of  tender,  the  jury  should  find  for  the  plaintiff, 
even  though  the  jury  believe,  from  the  evidence,  that  the  de- 
fendant has  attempted  to  keep  such  alleged  tender  good  by 
paying  the  mone}'  into  court.  2  Greenlf.  Ev.,  §  605 ;  Sim- 
tnons  vs.  Wilmott,  3  Esp.,  94. 

§  4.  On  Condition  of  Receipt  in  Full,  etc. — Though  the  jury 
may  believe,  from  the  evidence,  that  on  the  occasion  referred 
to  by  the  witnesses,  the  defendant  actually  tendered   to   the 

plaintiff  the  sum  of  % ,  in  payment  of  the  demand  sued  on 

in  this  case,  and  that  that  sum  w^as  all  or  more  than  was  then 
due  thereon,  still,  if  tiie  jury  further  believe,  from  the  evidence, 
that  that  tender  or  offer  of  payment  was  coupled  wither  made 
only  upon  the  condition  that  the  plaintiff  should  give  the 
defendant  a  receipt  in  full  of  all  demands,  then  this  was  a  con- 
dition which  the  defendant  had  no  right  to  impose  upon  tlie 
]3laintiff  upon  such  tender,  and  such  a  tender  cannot  avail  the 
defendant  anj- thing  in  this  suit.  2  Greenlf.  Ev.,  §  605;  Wood 
vs.  Hitchcock^  20  Wend.,  47;  Sutton  vs.  Hawhins,  S  C.  &  P., 
259;  2  Pars,  on  N.  &  B.,  625. 

§  5.  Willingness  to  Pay,  but  no  Tender. — That  a  mere  ex- 
pression of  a  willingness  or  a  readiness  to  pay,  or  a  proposition 
to  pay,  whatever  is  due,  without  specifying  any  certain  sum, 
and  without  actually  producing  and  offering  some  definite  sum 
of  money,  does  not  constitute  a  valid  tender.  To  constitute  a 
good  and  sufficient  tender,  the  person  indebted  must  offer  to 
pay  a  definite,  certain  sum  of  money,  and  he  must  specify  upon 


518  TENDER. 

what  demands  ho  proposes  to  pay  it,  whether  npon  any  par- 
ticular indebtedness,  or  in  nayment  of  all  that  is  due  from  him 
to  the  party  to  whom  the  tender  is  made,  unless  the  jury  be- 
lieve, from  the  evidence,  that  the  actual  production  of  the 
money  was  dispensed  with,  or  waived  by  the  creditor.  East- 
man vs.  Rapids^  21  la.,  570;  Steele  vs.  Briggs,  22  111.,  643. 

Though  the  jury  may  believe,  from  the  evidence,  that  some 
time  about,  etc.,  the  parties  mot  and  had  a  conversation  about 
the  matters  in  controversy  in  this  suit,  and  that  in  that  con- 
versation, defendant  told  the  plaintiff  that  he  was  ready  to 
pay  him  whatever  was  due,  that  he  had  the  money  in  his  pocket, 
and  if  the  plaintiff  would  name  the  sum  he  would  pay  him, 
still,  this  would  not  amount  to  a  valid  tender.  It  should  further 
appear,  from  a  preponderance  of  the  evidence,  that  the  de- 
fendant offered  to  pay  some  certain,  definite  sum,  and  that  he 
then  actually  produced  the  money  in  view  of  the  plaintiff,  un- 
less the  plaintiff  in  some  manner,  by  act  or  words,  dispensed 
with  the  production  of  the  money. 

§  6.  Acceptance  of  Tender. — The  court  instructs  the  jury,  as 
a  matter  of  law,  that  if  a  party  tender  to  another  a  certain  sum 
of  money,  in  full  satisfaction  and  discharge  of  a  disputed  claim, 
and  the  other  party  receive  it  on  the  terms  proposed,  it  will 
constitute  a  perpetual  bar  to  any  further  recovery  on  the  same 
account.  Jenks  vs.  Burr,  56  111.,  451;  Colter  vs.  O'Gonnell, 
48  la.,  552. 

The  jury  are  instiMicted,  that  the  law  is,  that  where  money 
is  offered  by  one  person  to  another,  in  satisfaction  of  a  disputed 
claim,  and  the  offer  be  accompanied  by  such  acts  and  declara- 
tions as  amount  to  a  condition  that  if  the  money  is  accepted, 
it  must  be  accepted  in  full  satisfaction  of  the  claim,  then  the 
party  to  whom  it  is  offered,  is  bound  to  understand,  that  if  he 
takes  the  money,  he  takes  it  subject  to  the  conditions  upon 
which  it  is  offered;  if  he  does  not  intend  to  take  the  money 
on  those  conditions,  he  must  not  take  it  at  all.  Preston  vs. 
Grant,  34  Yt.,  201. 

And  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
before  the  commencement  of  this  suit,  in  an  interview  between 
plaintiff  and  defendant,  the  defendant  offered  and  proposed  to 
pay  the  plaintiff  $ ,  upon  condition   that  he  would  ac- 


TENDER.  519 

ccpt  the  samo  in  fall  ))a3nn3nt  of  tlio  dcnand  snccl  for  in  this 
suit,  and  that  he  would  pay  the  money  upon  no  other  condi- 
tion, claiming  that  he  owed  the  plaintiff  no  more  tiian  that 
sum,  and  if  the  jury  furtlnr  believe,  from  the  evidence,  that 
the  plaintiff  acce])ted,  and  took  the  money  under  that  offer, 
then  he  must  be  deemed  to  have  taken  the  money  in  full  pay- 
ment and  full  satisfaction  of  such  demands,  no  matter  what 
protests  or  objections  to  so  receiving  the  money  he  may  have 
made  at  the  time. 

§  7.  Specifying  Objection  to  Acceptance,  a  Waiver,  etc. — The 
court  instructs  the  jury,  that  the  law  is,  that  when  one  person 
makes  a  tender  to  another,  and  the  tender  is  not  accepted,  and 
the  person  to  whom  the  tender  is  made,  places  his  refusal  to 
receive  the  tender  upon  certain  specified  objections,  such,  for 
instance,  as  that  the  amount  tendered  was  insufficient,  he  can- 
not, after  suit  is  brought,  raise  other  objections  which  might 
have  been  easily  remedied  at  the  time,  if  they  had  been  made 
then.  Stohes  vs.  Recknagel^  38  N.  T.  Sup.  Ct,,  368;  Whelan 
vs.  Reilley,  61  Mo.,  565. 

The  jury  are  instructed,  as  a  matter  of  law,  that  when  one 
undertakes  to  make  a  tender,  and  the  other  party  refuses  to 
receive  the  amount  proffered  on  the  ground  of  its  insufficiency, 
and  makes  no  other  objection,  this  will  be  a  waiver  of  any 
informalities  in  the  m.ode  or  manner  of  making  the  tender. 
Whelan  vs.  Reilley^  61  Mo.,  565. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiffs 
were  the  owners  of  the  property  in  question,  and  that  the  de- 
fendants had  the  same,  claiming  a  lien  thereon,  for  {^freight 
etc),  and  that  they  refused  to  deliver  up  the  goods  unless  the 
plaintiffs  would  pay  them  an  amount  larger  than  the  jury  be- 
lieve, from  the  evidence,  they  were  entitled  to  demand,  and 
so  told  the  plaintiffs  or  their  agent,  then  no  tender  of  any 
amount  was  necessary;  provided,  the  jury  believe,  from  the 
evidence,  that  the  plaintiffs  were  ready  and  offered  to  pay  the 
amount  that  was  actually  due. 

§  8.  Express  Waiver  of  Profluction  of  the  Money. — If  the  jury 
believe,  from  the  evidence,  that  at  some  time  before  the  com- 
mencement of  this  suit,  the  plaintiff  and  defendant  met  and 


5  20  TENDER. 

talked  over  tlie  matter  of  the  claims  sued  on  in  tliis  case,  and, 
that  upon  that  occasion,  the  defendant  offered  to  pay  to  the 

plaintiff  § ,  or  any  other  certain  sum,  in  payment  of  the 

demand  in  question  in  this  suit,  and,  at  the  same  time,  put  his 
hand  in  his  pocket  for  the  purpose  of  taking  out  the  money 
so  offered,  and  that  the  plaintiff"  then  said  to  him,  that  he  need 
not  take  out  liis  money,  that  he  would  not  accept  any  such 
sum,  or  words  to  that  effect,  then  this  would  amount  to  a 
waiver  of  the  necessity,  on  the  part  of  the  defendant,  of  act- 
ually producinc^,  exhibiting  and  offering  the  money  to  the 
plaintiff.     Guthiaari  vs.  Kearn,  8  J^eb.,  502. 

§  9.  Tender  Kept  Good. — If  the  jury  believe,  from  the  evi- 
dence, that  prior  to  the  commjncemant  of  this  suit,  the  de- 
fendant tendered  to  the  plaintiff,  or  to  the  person  authorized 
by  him  to  collect  the  account  sued  on  in  tliis  suit,  the  sum  of 

% ,  and    that  that  was   the  full   amount  of  what  was  then 

due  to  the  plaintiff",  and  that  the  defendant  afterwards,  at  the 
trial  before  the  justice,  paid  that  amount  into  the  hands  of  the 
justice,  and  left  it  with  him  to  be  paid  to  the  plaintiff,  or  to 
be  brought  into  this  court  on  appeal,  if  an  ap]:eal  should  be 
taken,  and  that  the  same  was  sent  by  the  justice  to  this  court 
upon  the  appeal,  and  has  since  remained  here,  subject  to  the 
order  of  the  plaintiff,  these  facts  constitute  a  good  tender, 
and  upon  that  issue  the  jury  should  find  for  the  defendant. 
Aulger  vs.  Clay,  109  111.,  487. 

If  the  jury  believe,  from  the  evidence,  that  before  tlie 
commencement  of  this  suit  the  defendant  made  a  tender  of 

% in  payment  of  the  demand  sued  upon,  and  that  he 

has  kept  that  tender  good,  as  explained  in  the  former  instruc- 
tions in  this  case,  then,  to  entitle  the  plaintiff  to  recover,  he 
must  show,  by  a  preponderance  of  evidence,  that  at  the  time 

of  such  tender  there  was  more  than  % due  to  him;  and 

unless  he  has  done  so,  the  jury  must  find  the  issue  of  tender 
in  favor  of  the  defendant. 

§  10.  Tender  after  Suit  Brought. — If  the  jury  believe,  from 
the  evidence,  that  some  time  on,  or  about,  etc.,  and  since  the 
commencement  of  this  suit,  the  defendant,  by  his  attorney, 
tendered  to   the   plaintiff  in  payment  of  the  demands  now  in 


TENDER.  521 

question,  tlio  sum  of  $ for  sncli  debts  and  the  costs 

incurred  in  the  suit  up  to  that  time;  and  further,  that  at  that 

time  there  was  no  more  than  the  said  sum  of  $ due  to 

the  plaintiff  incUiding  such  costs;  and  further,  that  the  defend- 
ant  has   kept   that   tender  good    by  paying  the  said  sum  of 

$ into  this  court  for  the  use  of  the  plaintiff,  then,  upon 

the  question  of  tender,  the  jury  should  find  a  verdict  for  the 
defendant.     Barnes  vs.  Greene,  30  la.,  114. 

§  11.  Tender  Waived. — When  a  person  declares  there  is 
nothing  due  him  when  an  offer  is  made  to  pay  him  an  alleged 
claim,  he  thereby  excuses  any  formal  tender,  and  he  cannot 
afterwards  object  that  the  money  was  not  counted  out  and 
presented  to  him.     Lacy  vs.  Wilson,  '24  Mich.,  479. 

A  tender  regularly  and  lawfully  made  discharges  a  lien,  and 
while  the  debt  is  not  discharged  thereby,  yet  the  security  is 
destroyed  at  once.     JEslow  vs.  Mitchell,  26  Mich.,  600. 


CHAPTER  XLTII. 

TEESPASS. 


INJURIES  TO  THE  PERSON". 

Sec.    1.  Assault  defined. 

2.  Asf^ault  and  battery  defined. 

3.  Plaintiff's  first  assault' — Plea  of  general  issue  only. 

4.  Aiding,  abetting,  etc. 

6.  Evil  intent  or  negligence  required. 

6.  Expelling  trespasser. 

7.  Repelling  force  by  force. 

8.  In  defense  of  person. 

9.  Self-defense— Excessive  force, 

10.  Drunkenness  no  justification. 

11.  Words  no  provocation — Mitigation  of  damages. 

12.  Words  of  provocation  no  justification. 

13.  Preponderance  of  evidence  sufficient. 

FALSE  IMPRISONMENT. 

14.  What  constitutes. 

15.  Trespassers  are  jointly  and  severally  liable. 

16.  Who  are  liable  as  joint  trespassers. 

17.  Who  are  not  liable  as  joint  trespassers. 

■    18.  Part  of  defendants  only  guilty — Form  of  verdici^ 

19.  Good  faith  in  mitigation  of  damages. 

20.  Exemplary  damages. 

INJURIES   TO    PERSONAL   PROPERTY — NO    PLEA    OF    JUSTIFICATION. 

Sec.  21.  What  constitutes  a  trespass. 

22.  What  possession  suflScient. 

23.  Possession  by  agent. 

24.  Possession  against  a  wrongdoer. 

25.  Special  property  defined. 

PLEA  OF  JUSTIFICATION. 

26.  Intent  immaterial. 

27.  Acts,  prima  fade  tresp.^ss. 

28.  Trespass,  ab  initio. 

29.  Justification  by  an  officer-  Writ  of  restitution. 

30.  Property  taken  on  execution. 

31.  What  constitutes  a  levy. 

(522) 


TEESl'ASS.  523 

Sec    33.     Lfvy,  -wTien  invalicl. 

33.  Officer  selling  fjrrowinjgr  crops. 

34.  Trespasser  by  ratification  or  adoption. 

85.  Landlord  liable — Seizure  under  a  distress  warrant. 

36.  Landlord,  when  not  liable. 

37.  Actual  damajres  only. 

38.  Exemplary  damages. 

TRESPASS  TO  REAL  ESTATE. 

39.  Actual  possession  sufficient. 

40.  Trespasser  by  ratification. 

41.  Trespass  by  agent. 

42.  Entry  under  legal  process. 

43.  Trespass,  ab  initio, 

44.  Entry  obtained  by  fraud. 

45.  Joint  trespassers. 

46.  Taking  personal  property,  aggravation,  etc. 

TRESPASS  BY  ANIMALS. 

47.  Animals  not  permitted  to  run  at  large. 

48.  Owner  of  lands  not  bound  to  fence. 

49.  Animals  lawfully  running  at  large — Land  protected  by  fence. 

50.  What  is  a  sufficient  fence — By  statute. 

51.  Animals  escaping  through  division  fence. 

52.  Burden  of  proof. 

^3.     Entry  through  plaintiff's  portion  of  the  fence. 

INJURIES  TO  THE  PERSON. 

§  1.  Assault  Defined. — The  court  instructs  the  jnrv,  thatevei'j 
person  has  a  ri^ht  to  complete  and  perfect  immunity  from 
hostile  assaults  that  threaten  danger  to  liis  person — a  right  to 
live  in  society  without  being  unnecessarily  or  wrongfully  put 
in  fear  of  personal  harm;  and  an  assault  is  an  attempt  with  un- 
lawful force  to  inflict  bodily  injury  upon  another,  acco)n]ianied 
with  the  apparent  present  ability  to  give  effect  to  the  attempt 
if  not  prevented.  Cooley  on  Torts,  160;  Harrison  vs.  ^7y, 
120  m.,  83. 

Whoever  attempts  to  strike,  touch  or  do  any  violence  to  an- 
other, however  small,  in  a  wanton,  willful,  angry  or  insulting 
manner,  having  an  intention  and  an  apparent  ])resent  ability  to 
do  some  violence  to  such  person,  is  guilty  of  an  assault. 

§  2.  Assault  and  Battery  Defined. — The  jury  are  instructed, 
that  an  assault  and  battery  consists  in  an  injury  actually  done 


524  TEESPASS. 

to  the  person  of  another  in  an  angry  or  revengeful,  rnde  or 
insolent  manner.  Any  unlawful  beating  of  another,  however 
slight,  is  an  assault  and  battery;  and  the  degree  of  bodily 
pain  and  injury,  if  the  assault  and  battery  are  proved,  is  only 
important  as  affecting  the  measure  of  damages.  Cooley  on 
Torts,  162;  Harrison  vs.  Ely,  120  111.,  83. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
some  time  on,  or  about,  etc.,  struck  and  kicked  the  plaintiff,  as 
alleged  in  plaintiff's  declaration,  without  any  sufficient  provo- 
cation therefor,  as  explained  in  these  instructions,  and  that 
the  plaintiff  was  injured  by  such  striking  and  kicking,  and  has 
suffered  any  damage  therefrom,  then  the  jury  should  find  the 
issues  for  the  plaintiff. 

The  court  further  instructs  the  jury,  that  if  they  believe, 
from  the  evidence,  that  the  defendant  assaulted  and  beat  the 
plaintiff,  as  charged  in  the  declaration,  then  they  should  find 
a  verdict  fur  the  plaintiff,  unless  they  further  believe,  from 
the  evidence,  that  such  assaulting  and  beating,  when  done, 
were  reasonably  and  apparently  necessary  in  defense,  etc.,  and 
that  the  force  and  violence  used  by  the  defendant  were  no 
more  than  a  reasonable  man  would  have  deemed  reasonably 
necessary  in  such  defense. 

§   3.     Plaintiff's  First  Assault — Flea  of  General  Issne  Only. — The 

jury  are  instructed,  that  under  the  pleadings  in  this  case,  even 
if  you  find  the  plaintiff  made  the  lirst  assault,  that  fact  can- 
not be  considered  by  the  jury  as  a  justification  of  the  conduct 
of  the  defendants,  if  you  find,  from  the  evidence,  that  they,  or 
either  of  them,  also  made  an  assault  upon  the  plaintiff.  In 
such  case,  the  plaintift''s  first  assault  can  only  be  considered  in 
mitigation  of  damages. 

Under  the  pleadings  in  this  case,  the  only  question  for  the 
jury  to  determine  is,  whether  the  defendants,  or  either  of 
♦them,  committed  an  assault  and  battery  upon  the  person  of 
the  plaintiff,  as  charged  in  the  declaration ;  and  if  you  find, 
from  the  evidence,  that  the  defendants,  or  either  of  them, 
committed  the  assault  and  battery  complained  of,  it  cannot  be 
claimed,  as  a  justification  for  such  assault  by  the  defendant  or 
defendants,  that  the  plaintiff  made  the  first  assault.  1  Chitty 
on  Plead.,  501;  2  Greenl.  Ev.,  §  95. 


TRESrA£S.  525 

§  4.  Aiding,  Abetting,  etc. — The  coni't  instniets  llio  jury, 
tliat  a  jierson  who  encourages,  advises,  aids,  or  abets  an  unlaw- 
ful assault  and  battery,  is  liable  for  all  the  damages  directly 
resulting  therefrom.  And  in  this  case,  if  the  jury  believe, 
from  the  evidence,  that  the  defendant,  A.  B.,  unlawfully  as- 
saulted and  injured  the  plaintiff,  as  alleged  in  the  declaration, 
then,  if  the  jury  further  believe,  from  the  evidence,  that  the 
other  defendants,  or  either  of  them,  aided,  abetted,  advised, 
or  encouraged  such  assault,  by  tlie  said  A.  B.,  the  jury  should 
nut  only  lind  the  said  A.  B.  guilty,  but  they  should  also  find 
such  of  the  other  defendants  guilty  as  they  believe,  from  tlie 
evidence,  aided,  abetted,  advised,  or  encouraged  the  commis- 
sion of  such  assault. 

If  several  persons  commit  an  unlawful  assault  and  battery 
upon  the  person  of  another,  then  each  person  who  participates 
^n  such  assault  is  guilty,  and  liable  to  the  party  injured  for  all 
the  damage  he  may  sustain  in  consequence  of  such  assault. 

And  if  any  one  incites,  advises,  or  encourages  an  unlawful 
assault  and  battery,  then  he  is  also  liable  as  princij^al,  and  to 
the  same  extent  as  though  he  had  actually  particii)ated  in 
committing  the  assault,  and  inflicting  the  injury.  Cooley  on 
Torts,  125,  133;  Barden  vs.  Felch,  109  Mass.,  154;  2  Hill,  on 
Torts,  293. 

"When  several  persons  unite  in  an  act  which  constitutes  a 
wrong  to  another,  intending  at  the  time  to  commit  the  act,  or 
do  it  under  circumstances  which  fairly  show  that  they  intended 
the  consequences  which  followed,  then  the  law  will  compel 
each  to  bear  the  responsibility  of  the  misconduct  of  all,  and 
the  party  injured  is  at  liberty  to  enforce  his  remedy  against  all, 
or  against  any  one  or  more  of  the  number.  Page  vs.  free- 
man, 19  Mo.,  421;  Wright  vs.  Lathroj),  2  Ohic,  33;  Turner 
vs.  EitcJicock,  20  la.,  310. 

§  5.  Evil  Intent  or  Negligence  Required. —  The  court  instructs 
the  jury,  that  the  defendant  ought  not  to  be  found  guilty  in 
this  action,  unless  the  jury  believe,  from  the  evidence,  that  the 
defendant,  in  inflicting  the  injury  complained  of,  was  guilty  of 
some  wrong  or  evil  intent,  or  want  of  care  and  prudence ;  and 
if  the  jury  believe,  from  the  evidence,  that  the  defendant 
struck  the  blow  without  any  wrong  or  evil  intent,  or  want  of 


526  TEEsrAss. 

reasonable  care  an  1  prudence,  tliej  should  find  tlic  defendant 
not  guilty. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
struck  tlie  plaintiff,  under  an  honest  belief  that  the  blow  was 
necessary  in  self-defense,  and  to  prevent  great  bodily  harm  to 
himself,  and  that  the  circumstances  were  such,  at  the  time,  as 
to  cause  a  reasonably  prudent  and  courageous  man  to  entertain 
such  belief,  and  to  apprehend  such  harm,  then  the  jury  should 
find  the  defendant  not  guilty.  2  Addison  on  Torts,  §  790; 
Cooley  on  Torts,  164;  PaxtojiYQ.  Boyer,  67  III,  132. 

The  jury  are  instructed,  that  in  this  case,  the  plaintiff  can- 
not recover,  unless  the  jury  find,  from  the  evidence,  that  the 
shooting  was  willful  and  intentional. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
did  not  assault  the  plaintiff,  but  that,  having  the  pistol  in  his 
hand  for  a  lawful  pur[iose,  he,  by  the  negligent  or  careless 
handling  of  the  pistol,  or  by  accident,  discharged  the  pistol, 
and  the  plaintiff  thereby  received  an  injury,  he  cannot  recover 
damages  for  such  injury  in  this  action.  Krai  vs.  Lull,  49 
Wis.  403. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
had  a  pistol  in  his  hands,  but  was  not  attempting  to  discharge 
it  towards  the  plaintiff,  and  that  the  plaintiff  assaulted  the 
defendant,  and  by  pushing  and  jostling  him,  caused  the  pistol 
to  go  off  and  thereby  received  an  injury,  without  any  intention 
on  tlie  part  of  the  defendant  that  the  pistol  should  be  dis- 
charged, then  the  defendant  would  not  be  liable  in  this  action 
for  any  injury  consequent  upon  the  discharge  of  the  pistol. 
Krai  vs.  Lull,  49  Wis.,  403. 

§  6.  Expelling  Trespasser. — The  jury  are  instruc'^ed,  that  no 
one  has  a  right  to  go  upon  the  premises  of  another,  even  though 
it  be  his  office,  store,  or  place  of  business,  after  the  owner  has 
forbidden  him  to  do.  so. 

If  a  person  enters  upon  the  possession  of  another,  and  is 
requested  to  depart  and  refuses  to  do  so,  the  owner  of  the 
premises  may  lawfully  eject  him  therefrom;  provided,  he  uses 
no  more  force  than  is  reasonably  necessary  for  that  purpose. 
1  Hill,  on  Torts,  186;  Woodman  vs.  Howell,  45  111.,  367; 
McCdrty  vs.  Fremont,  23  Cal.,  196;  LLarrison  vs.  LLarrison, 
43  Vt,  417;  Addison  on  Torts,  793. 


TEESPASS.  527 

§  7.  Ropelling  Force  by  Force. — The  court  instructs  the  jury, 
that  if  they  believe,  from  the  evidence,  that  the  defendant 
assaulted  and  beat  the  plaintiff  in  the  reasonably  necessary 
defense  of  his  own  person,  after  havini^  been  first  assaulted  by 
the  plaintiff,  and  that  he  used  no  more  force  than  was  ap|)ar- 
ently  necessary  for  such  defense,  then  the  jury  should  find  the 
issues  for  the  defendant. 

"While  the  law  will  not  excuse  or  justify  the  use  of  more 
force  than  is  reasonably  necessary  in  self-defense,  and  to  pre- 
vent receiving  bodily  harm,  still,  the  law  does  make  a  reason- 
able allowance  for  the  infirmity  of  human  judgment  under  the 
influence  of  sudden  passion  or  provocation,  and  it  does  not 
require  men  to  measure  with  mathematical  exactness,  the  de- 
gree of  force  necessai-y  to  re])el  an  assault.  The  jury  must 
judge  from  all  the  facts  and  circumstances,  proved  on  the 
trial,  whether  the  defendant  did  assault  the  plaintiff,  and 
whether  he  did  use  more  force  and  violence  than  was  reason- 
ably necessary  under  the  circumstances. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff 
made  the  first  assault  upon  the  defendant,  then  the  defendant 
had  a  right  to  resist  force  by  force,  and  to  use  so  much  force 
as  was  reasonably  necessary  to  defend  himself;  and  in  case 
the  jury  find,  from  the  evidence,  that  the  plaintiff  made  the 
first  assault  upon  the  defendant,  then  to  warrant  a  verdict  for 
the  plaintiff,  the  burden  of  proof  is  upon  him  to  show  that 
the  defendant  did  use  more  force  than  was  reasonably  neces- 
sary under  the  circumstances  to  defend  himself.  Ayei's  vs. 
Bristol,  35  Mich.,  501. 

§  8.  In  Defense  of  Possession. — That  a  person  in  the  actual, 
peaceable  and  exclusive  possession  of  property  has  a  right  to 
guard  such  possession  by  using  force,  if  necessary,  for  that 
purpose.     And  in  this  case,  if  the  jury  find,  from  the  evidence, 

that  at  the  time  of  the  alleged  assault,  and  for months 

before  that  time,  the  defendant  was  in  the  actual,  peaceable 
and  exclusive  possession  of  the  {house)  where  the  disturbance 
is  alleged  to  have  occurred,  and  that  at  the  time  in  question 
the  plaintiff  was  attempting  and  endeavoring,  by  force,  to 
enter  such  {house)  against  the  will  and  orders  of  the  defend- 
ant, then  the  defendant  had  a  right  to  prevent  such  entry  by 


528  TRESPASS. 

using  force,  and  to  use  so  much  force  as  was  reasonably  neces- 
sary for  that  purpose. 

§  9.  Self-Defense — Excessive  Force. — Though  the  jury  should 
believe,  from  the  evidence,  that  the  plaintiff  made  the  first  as- 
sault upon  the  defendants  or  some  one  or  more  of  them,  still, 
if  they  further  believe,  from  the  evidence,  that  the  defendant, 
when  so  attacked,  repelled  plaintiff's  assault  with  more  force 
and  violence,  and  did  more  injury  to  the  plaintiff,  than  was 
i-easonably  necessary  for  their  own  protection  from  injury  at 
his  hands,  then,  as  a  mitter  of  law,  the  defendants  using  such, 
excessive  force  would  be  guilty  of  assault  and  battery,  and  you 
should  so  find  by  your  verdict.  2  Addison  on  Torts,  §  792; 
Adams  vs.  Waggoner^  33  Ind.,  531;  Close  vs.  Coojper^  34  Ohio 
St.,  98. 

The  court  further  instructs  the  jury,  that  although  you  may 
believe,  from  the  evidence,  that  the  plaintiff  met  the  defend- 
ants in  a  threatening  attitude,  armed  with  a  club,  and  threat- 
ened that  he  was  gong  to  use  the  club  over  their  heads,  still, 
if  you  further  believe,  from  the  evidence,  that  the  defendants 
there  and  then  disarmed  the  plaintiff,  and  put  it  out  of  his 
power  to  do  them  any  injury,  then,  as  a  matter  of  law,  it  was 
the  duty  of  the  defendants  to  have  desisted  from  any  further 
violence  towards  the  plaintiff.  And  if  you  further  believe, 
from  the  evidence,  that  the  defendants,  or  either  of  them, 
used  more  force  and  violence  towards  the  plaintiff  than  was 
reasonably  necessary  in  so  disarming  the  plaintiff,  or  if  you 
believe,  from  the  evidence,  that  after  they  had  disarmed  him, 
the  defendants,  or  either  of  them,  committed  any  further 
assault  and  battery  upon  the  plaintiff  than  was  necessary  for 
their  own  protection,  then  such  defendants  would  in  law 
become  the  aggressors,  and  you  should  find  such  defendant,  or 
defendants,  guilty. 

While  the  law  makes  reasonable  allowance  for  the  infirm- 
ities of  human  judgment  under  the  influence  of  sudden  pas- 
sion, and  does  not  require  men  to  measure  with  matiiematical 
exactness  the  degree  of  foice  necessary  to  repel  an  assault, 
still,  it  does  require  all  men,  even  under  the  influence  of 
sudden  jiassion,  to  exercise  reasonable  discretion  and  forbear- 
ance in  the  infliction  of   injuries  upon  the  person  of  another. 


TRESPASS.  529 

And,  in  this  case,  thongli  tlie  Jury  may  believe,  from  the  evi- 
dence, tliat  the  plaintiflf  first  made  an  attack  nj^on  t'  e  defend- 
ants, or  some  one  of  tlicm,  still,  if  you  further  believe,  from 
the  evidence,  that  in  re])enin2^  snch  attack,  the  defendant,  or 
either  of  them,  used  a  degree  of  force  and  violence  towards 
the  ]ilaintilf  greater  than  was  apparently  and  reasonably 
necessary  to  repel  snch  attnck,  and  thereby  cansed  unneces- 
sary injury  to  the  jilaintifT,  then  it  is  your  sworn  duty,  as 
jurors,  to  find  a  verdict  of  guilty  against  such  one,  or  more, 
of  the  defendants  as  you  find,  from  the  evidence,  took  part  in 
using  such  excess  of  force  and  violence. 

Although  the  jury  may  believe,  from  the  evidence,  that 
the  plaintiff  caught  hold  of  the  defendant,  and  was  about  to 
strike  or  injure  him  with  a  {hatGhef),  still,  if  the  jury  further 
believe,  from  the  evidence,  that  the  defendant  used  more 
force  and  violence  than  was  apparently  and  reasonably  neces- 
sary to  prevent  injury  to  himself,  then  such  excess  of  force 
would  be  unlawful,  and  the  defendant,  as  to  such  excess,  would 
be  guilty  of  an  unlawful  assault  upon  the  plaintiff. 

§  10.  Drunkenness  no  Justification. — Although  the  Jury  may 
believe,  from  the  evidence,  that  the  defendant  was  drunk  at 
the  time  he  assaulted,  and  kicked,  and  struck,  the  plaintiff,  if 
such  assaulting,  kicking  and  striking  have  been  proved,  still, 
the  fact  of  drunkenness  alone  would  be  no  excuse  or  justifica- 
tion for  such  assault, 

§  11.  Words  of  Provocation — Mitigation  of  Damages. — That, 
while  words  of  provocation  do  not  justify  an  assault  and  bat- 
tery, they  may  properly  be  considered  in  mitigation  of  dam- 
ages; and  if  the  jury  believe,  from  the  evidence,  that,  just 
before  the  assault  com])lained  of,  the  plaintiff  used  words  to 
the  defendant  calculated  to  provoke  a  breach  of  the  ];eace, 
and  menaced  the  defendant  with  his  fists,  then  such  facts  and 
circumstances  may  be  considered  by  the  jury  in  mitigation  of 
damages,  in  case  they  find  the  defendant  guilty.  1  Hill,  on 
Torts,  185;  Keyes  v.  Devlin,  3d  E.  D.  Smith,  518;  Ireland 
vs.  Elliott,  5  Clarke  (la.),  478;  Suggs  vs.  Anderson,  12  Ga., 
461;  Brown  vs.  Swineford,  44  Wis.,  282;  Burke  vs.  Melvin, 
45  Conn.,  243. 
34 


530  TRESPASS. 

§  12.  AVords  of  Provocation  no  Justification. — If  tliG  jury 
believe,  from  the  evidence,  that  the  defendant  committed  the 
assault  and  battery  complained  of,  in  anger,  caused  by  words 
spoken  by  tlie  plaintiff,  then  the  jury  are  instructed,  as  a  mat. 
ter  of  law,  that  words  alone  do  not  excuse  or  justify  an  assault 
and  battery ;  they  can  only  go  in  mitigation  of  damages. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff, 
immediately  before  the  assault  complained  of,  used  violent 
and  abusive  language  to  and  concerning  the  defendant,  and 
menaced  and  threatened  him  with  personal  injury,  then  these 
facts  are  proper  to  be  taken  into  account,  with  all  the  other 
evidence  in  the  case,  in  assessing  the  plaintiff's  damages,  if 
they  find  the  defendant  guilty. 

§  13.  Preponderance  of  Evidence  SuflBcient. — That  in  this  ac- 
tion, the  plaintiff  is  only  reqnired  to  make  out  his  case,  by 
a  preponderance  of  evidence,  to  entitle  him  to  recover;  and 
any  of  the  evidence  in  the  case,  either  circumstantial  or 
positive  and  direct,  which  tends  to  produce  belief  in  the  mind 
of  the  jury,  is  proper  to  be  considered  by  them,  in  determining 
whether  or  not  the  defendant  is  guilty.  Miller  vs.  Balthasser^ 
78  111.,  302. 

FALSE  IMPRISONMENT. 

§  14-.  "WHiat  Constitutes. — The  court  instructs  the  jury,  that 
in  order  to  sustain  a  charge  for  false  imprisonment,  it  is  not 
necessary  for  the  plaintiff  to  show  that  the  defendant  used 
violence  or  laid  hands  on  him,  or  shut  him  up  in  a  jail  or 
prison ;  but  it  is  sufficient  to  show  that  the  defendant,  at  any 
time  or  place',  in  any  manner,  restrained  the  plaintiff  of  liis 
liberty,  or  detained  him  in  any  manner  from  going  where  he 
wished,  or  prevented  him  from  doing  wliat  he  wished;  pro- 
vided, this  is  done  without  legal  authority,  as  explained  in 
these  instructions.  Cooley  on  Torts,  169;  Brusliaher  vs. 
Stagemann,  22  Mich.,  266  ;  2  Addison  on  Torts,  697;  Hawk 
vs.  Ridgway,  33  111.,  473;  Bonesteel  vs.  Bonesteel,  28  Wis., 
245;  Ilarkins  vs.  State^  6  Tex.  App.,  452;  Murphy  \^.  Martin, 
58  Wis.,  276;  Gelzenleuchter  \b.  Neimeyer,  64  Wis.,  316. 

If  the  jury  believe,  from   the  evidence,  that  the  defendant 


TRESPASS.  531 

met  the  plaintiff  at  S.,  and  took  the  plaintiff  into  his  custody, 
and  there  kept  liini,  and  brought  him  to  M.  against  his  will, 
and  offered  to  deliver  him  into  the  custody  of  the  sheriff", 
then  the  defendant  is  guilty  as  charged  in  tlie  declaration,  and 
the  jury  should  iind  for  the  plaintiff;  un'ess  the  jury  further 
lind,  from  the  evidence,  under  the  instructions  of  the  court, 
that  the  defendant  was  warranted  in  law  in  making  such  arrest, 
as  explained  in  these  instructions.  Ilawk  vs.  liidgway,  33  111., 
473. 

To  constitute  an  arrest  and  imprisonment,  it  is  not  necessary 
that  the  party  making  the  arrest  should  actually  use  violence 
or  force  towards  the  party  arrested,  or  that  he  should  even 
touch  his  body.  If  he  profess  to  have  authority  to  make  the 
arrest,  and  lie  commands  the  person,  by  virtue  of  such  pre- 
tended authority,  to  go  with  him,  and  the  person  obey  the 
order,  and  they  walk  together  in  the  direction  pointed  out  by 
the  person  claiming  the  right  to  make  the  arrest,  this  is  an 
arrest  and  imprisonment  witliin  tlie  meaning  of  the  law.  2 
Addison  on  Torts,  §  T99;  Cooley  on  Torts,  169. 

In  order  to  constitute  an  arrest,  an  actual  laying  on  of  the 
hands,  or  personal  violence,  is  not  necessary;  it  is  simply  nec- 
essary that  the  arrested  party  be  within  the  control  of  the 
officer  or  other  person  making  the  arrest,  and  submits  him- 
self to  such  control,  in  consequence  of  some  claim  of  right  to 
make  the  arrest,  or  threat  to  make  it,  by  such  officer  or  other 
person. 

Any  deprivation  of  the  liberty  of  another,  without  his  con- 
sent, whether  it  be  by  actual  violence,  threats,  or  otherwise, 
constitutes  an  imprisonment  within  the  meaning  of  the  law. 

§  15.  Trespassers  are  Jointly  and  Severally  Liable. — The  court 
instructs  the  jury,  that  in  an  action  of  trespass,  if  the  jury  be- 
lieve, from  the  evidence,  that  a  trespass  lias  been  committed, 
as  alleged  in  the  declaration,  and  that  there  was  more  than 
one  wrong-doer  engaged  in  the  trespass,  then  such  wrong- 
doers are  jointly  and  severally  liable,  and  the  plaintiff"  is 
under  no  obligations  to  sue  all  who  are  engaged  in  the  tres- 
pass— he  may,  at  his  election,  proceed  against  any  one  ox  more 
of  such  wrong-doers.     Ously  vs.  Hardin^  23  111.,  403. 


533  TKESPASS. 

§  16.  Who  Lia'ole  .is  Joint  Trespassers. — The  court  instructs 
the  jury,  that  the  law  is,  tliat  all  ijarties  who  engage  in  making 
an  illegal  or  unlawful  arrest,  are  trespassers;  and  if  tlie  jury 
believe,  from  the  evidence,  tliat  the  defendants,  or  either  of 
them,  restrained  the  plaintiif  of  liis  libeity,  as  charged  in  plaint- 
iff's declaration,  and  without  authority  of  law,  as  explained  in 
these  instructions,  then  such  persons  are  liable  to  the  plaintiif 
in  this  action.      Callaghan  vs.  Mijers^  89  III.,  506. 

If  the  jiir3^  believe,  from  the  evidence,  that  the  defendants, 
or  either  of  tliem,  arrested  the  plaintiff,  as  charged  in  the 
declaration,  without  lawful  authority  for  making  such  arrest, 
as  explained  in  these  instructions,  then  3^our  verdict  sliould  be 
for  the  plaintiff,  and  against  such  of  the  defendants  as  are 
shown,  by  the  evidence,  to  have  participated  in  making  tlie 
arrest. 

If  the  jury  believe,  from  the  evidence,  that  A.  B.,  one  of 
the  defendants,  and  he  alone,  assumed  the  immediate  control 
and  detention  of  the  plaintiff  at  the  time  in  question,  still,  if 
you  further  believe,  from  the  evidence,  that  the  other  defend- 
ants, or  any  of  them,  were  then  present,  acting  in  concert  with 
the  said  defendant  A.  B.,  and  were  wrongfulh'  inciting  him 
to  arrest  or  imprison  the  plaintiff,  then  such  other  defendant 
or  defendants  will  be  equally  liable  with  the  said  A.  B.;  pro- 
vided you  find  him  guilty,  under  the  evidence  and  instruc- 
tions of  the  court.      Whitney  vs.  Turner^  1  Scam.  (III.),  253. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff 
had  not  connnitted  any  offense  alleged  in  the  defendants' 
pleas,  and  that  both  of  the  defendants  concurred  in  laying 
hands  on  him  and  arresting  him,  then  the  jury  are  instructed 
that  they  should  find  both  the  defendants  guilty,  and  assess 
the  plaintiff's  damages. 

If  the  jury  believe,  from  the  evidence  and  under  the  in- 
structions herewith  giveUj  that  the  defendants  M.  and  M.  were 
both  engaged  in  the  common  purpose  of  unlawfully  arresting 
the  plaintiff,  and  that  M.  had  laid  hold  of  the  plaintiff,  and 
that  M.  imnudiately  afterwards,  in  pursuance  of  said  common 
purpose  of  unlawfully  arresting  said  plaintiff,  struck  said 
plaintiff  with  a  club,  and  that  said  striking  wms  done  in  the 
presence  of  M.,  and  that  M.  did  not  try  to  prevent  the  same, 
but  on  the  contrary  thereof,  adopted  and  approved  said  act  of 


TRESPASS.  533 

said  M.  in  striking  said  plaintiff,  then  the  jurj  are  instructed 
that  said  M.  is  as  responsible  in  tliis  action  for  said  striking  as 
is  M.     Mullin  vs.  S^pangenber'g^  112  111.,  112. 

§  17.  AVhen  not  Liable  as  Joint  Trespasser. — Although  the 
jury  may  believe,  from  the  evidence,  that  the  defendant  C. 
proved  up  his  claim  before  the  justice  of  the  peace,  as  testi- 
fied to  by  the  plaintiff,  still,  unless  you  further  believe,  from 
the  evidence,  that  the  said  C.  aided,  advised  or  assisted  in  the 
arrest  of  the  plaintiff,  then  you  should  find  the  said  C.  not 
guilty,  unless  you  further  find,  from  the  evidence,  that  since 
the  arrest  he  has  approved  or  adopted  the  acts  of  those  who 
did  cause  it.  Cooley  on  Torts,  129;  Avrill  vs.  Willia77is,  4 
Denio,  295;  Abbott  vs.  Kimball^  19  Vt,  551;  SnydacJcer  vs. 
Brisse,  51  111.,  357. 

If  a  person  makes  an  application,  in  good  faith,  to  a  justice 
of  the  peace,  for  legal  process,  for  a  supposed  just  claim,  and 
then  attempts  to  prove  it  up  before  the  justice,  and  does  no 
more,  this  alone  will  not  render  him  liable  for  the  errors  or 
mistakes,  or  even  for  the  malicious  acts,  of  such  justice. 

To  warrant  a  verdict  of  guilty  against  the  defendants,  L. 
and  E..,  the  jury  must  believe,  from  the  evidence,  that  they 
aided,  abetted,  encouraged  or  assisted  in  making  the  arrest, 
before  or  at  the  time  the  same  was  made,  or  else  that  it  was 
done  in  their  behalf  and  for  their  benefit,  and  that  they  have 
ratified  and  approved  of  the  arrest  since  it  was  made;  and  if 
neither  of  these  things  appear  to  be  jiroved  by  a  jiroponder- 
ance  of  the  evidence,  then  the  said  defendants,  L.  and  K., 
should  be  acquitted. 

§   18.     Part  of  Defendants  Only  Gtiilty — Form   of  Ver^Ioc. — If 

the  jury  believe,  from  the  evidence,  i:.nder  the  instructions  of 
the  court,  that  some  of  the  defondantr,  are  guilty  of  the  tres- 
passes alleged  in  the  declaration,  and  some  not  guilty,  then 
the  jury  should  find,  in  their  verdict,  in  favor  of  the  plaintiff 
and  against  those  of  the  dele^dants  who  are  so  proven  to  be 
guilty,  and  as  to  the  other  d'^fendants,  that  they  are  not  guilty, 
and,  in  either  case,  mention /ag  the  defendants  by  name. 

§  19.  Good  Faith  in  Miti;5ation  of  Damages. — If,  from  the  evi- 
dence, under  the  instructions  of  the  court,  the  jury  find   the 


534  TEESPASS. 

defendants,  or  any  one  of  tliem,  ^^uilty,  as  cliarg^cd  in  the  dec- 
laration, still,  if  you  furtlier  find,  from  the  evidence,  that  in 
making  the  arrest  complained  of,  snch  parties,  in  good  faith 
and  without  malice,  were  only  pursuing  what  they  supposed 
were  tlieir  just  rights,  by  legal  remedies,  then  this  fact  may 
be  considered  by  the  jury  in  fixing  the  amount  of  damages, 
and  as  tending  to  show  that  only  actual  damages  should  be 
given. 

§  20.  Exemplary  Damages. — If  the  jury  find  the  defendants, 
or  any  of  them,  guilty  of  the  arrest  charged  in  the  decla- 
ration, and  if  you  further  find,  from  the  evidence,  that  such 
arrest  was  maliciously  and  wantonly  made,  then,  in  assessing 
the  plaintiff's  damages,  the  jury  may  give  what,  in  law,  are 
called  exemplary  or  vindictive  damages;  that  is,  such  damages 
as  will  not  only  give  the  plaintiff  compensation  for  the  dam- 
ages actually  suffered  by  him,  but  will  also  afford  a  whole- 
some example  to  others  in  like  cases. 

The  court  instructs  the  jury,  that  if  they  believe,  from  the 
evidence,  that  said  defendants,  or  any  one  of  them,  at  the  time 
in  question,  injured  the  plaintiff,  and  put  indignities  upon  her 
person,  from  vindictiveness,  or  a  wanton  or  reckless  disregard 
of  her  age  or  her  infirmities,  they  may  assess  exemplary  dam- 
ages against  the  defendants,  or  such  of  them  as  the  evidence 
shows  are  guilt}^,  as  charged  in  the  declaration. 

Exemplary  or  vindictive  damages  should  not  be  given  in  a 
case  of  this  kind,  unless  the  jury  find,  from  the  evidence,  not 
only  that  the  defendants  are  guilty,  but  also  that  they  acted 
maliciously  or  wantonly,  and  with  wrongful  intent,  nor  unless 
all  the  defendants  against  whom  a  verdict  is  rendered,  were 
actuated  by  such  malice,  wantonness  or  evil  intent. 

INJURIES    TO    PERSONAL    PROPERTY NO   PLEA    OF   JUSTIFICATION. 

§  21.  What  Constitutes  Trespass,  etc. — The  court  instructs 
the  jury,  that  the  gist  of  this  action  is  the  unlawful  (taking 
and  carrying  away  of  the  personal  property  of  the  plaintiff', 
from  his  possession,  by  the  defendant);  and  if  the  jury  believe, 
from  the  evidence,  that  at  tlie  time  of  the  alleged  trespass, 
the  plaintiff  was  the  owner  of  the  property  in  question,  and 


TRESPASS.  535 

had  it  in  his  possession,  and  that  tlie  defendant,  without  the 
consent  of  the  plaintiff  and  ao-uinst  liis  will,  took  the  property 
from  the  possession  of  the  jilaintiff  and  converted  the  same  to 
his  own  use,  then  the  jury  sliould  find  the  issues  for  the 
plaiutilf. 

§  22.  What  Possession  SnflRcient. — The  court  instructs  the 
jury,  tliat  a  trespass  to  personal  property  consists  in  the  unlaw- 
ful disturbance,  by  force,  of  another's  possession  of  such 
i>roperty,  and  in  order  to  sustain  the  action  it  is  only  necessaiy 
that  the  plaintiff  show  that,  at  the  time  of  the  alleged  trespass, 
he  was  the  general  owner  of  the  property,  and  then  in  the  act- 
ual possession  of  it,  either  by  himself,  his  agent  or  servant, 
and,  further,  that  the  defendant  unlawfully  interfered  witli  the 
property,  either  by  injuring  it,  or  by  taking  it  and  carrying  it 
away  without  lawful  right,  and  against  the  will  of  such  owner. 
Scott  vs.  Bryson,  74  111.,  420;  Cooley  on  Torts,  436;  Addison 
on  Torts,  §  442;  1  Hill,  on  Torts,  501;  Miller  vs.  Clay,  57 
Ala.,  3  62. 

In  order  to  maintain  an  action  for  trespass  to  personal  prop- 
erty, it  is  suiScient  if  the  evidence  shows  that  the  plaintiff  had 
what  is  called  a  special  property  therein,  together  with  the 
actual  possession  of  the  property,  and  a  right  to  such  posses- 
sion; and  that  the  defendant  unlawfully,  and  without  right, 
interfered  with  or  disturbed  such  possession,  either  by  injur- 
ing the  propert}''  or  by  taking  it  and  carrying  it  away,  against 
the  will  of  the  person  so  in  possession.  Miller  vs.  Kirhy,  74 
III,  242;  Cooley  on  Torts,  436;  Addison  on  Torts,  §  442;  1 
Hill,  on  Torts,  501. 

§  23.  Possession  by  Agent. — If  the  juiy  believe,  from  the 
evidence,  that  at  the  time  of  the  alleged  trespass  the  plaintiff 
was  th^  owner  of  the  {property)  in  question,  and  was  in  ]ios- 
session  of  it,  by  himself,  his  agent  or  servants,  and  that  the 
defendant  took  and  carried  away  said  property,  and  converted 
it  to  his  own  use,  as  alleged  in  the  declaration,  then  the  jury 
should  find  the  defendant  guilty. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  of 
the  alleged  trespass  the  plaintiff  was  the  owner  of  the  {animal) 
in  controversy,  and  that  the  same  was  in  the  actual  j  jssession 


536  TKESPASS. 

of  liis  (Iroi/ier),  as  his  agent  or  servant,  then  the  possession  of 
the  {Jjrother)  was  the  possession  of  tlie  plaintiff;  and  if  the 
jury  further  believe,  from  the  evidence,  that  while  the  prop- 
erty was  so  in  the  ])os!«ession  of  the  plaintifl",  the  defendant 
io()\i  and  carried  it  away,  as  charged  in  the  declaration,  the 
jury  should  hnd  the  defendant  guilty. 

§  2-t.  Po.^session  as  against  a  AVrong-Doer. — That  a  person 
who  is  in  the  actual,  peaceable  and  exclusive  possession  of  j-er- 
sonal  property,  without  showing  any  other  right,  has  a  sufK- 
cient  title  in  the  property  to  maintain  trespass  against  one 
who,  with  force,  intermeddles  witli  such  possession  without 
showing  any  right  or  title  to  the  property,  or  to  the  posses- 
sion thereof.  Cooley  on  Torts,  430;  Addison  on  Torts, 
§  442;  Scott  vs.  Brysoii,  74  111.,  420;  Miller  vs.  Kirlij,  T4 
III,  242. 

§  25.  Special  Property  Defined. — The  court  instructs  the 
jury,  as  regards  the  term  "special  projjerty,"  that  a  ])ersou 
who  is  not  the  general  owner  of  personal  property,  but  has  it 
in  his  ]DOssession,  with  the  right  to  such  possession  for  tlie 
time  being,  even  as  against  the  general  owner,  is  deemed  in 
law  to  have  a  special  property  in  the  property  so  in  his  pos- 
session, and  such  a  person  may  maintain  trespass  against  any 
one  who  unlawfully,  with  force,  interferes  or  meddles  with 
such  possession. 

PLEA  OF  JTSTinCATIOlSr. 

§  26.  Intent  Immaterial. — To  render  a  person  guilty  of  tres- 
pass to  personal  property  it  is  not  essential  that  he  should  intend 
to  do  a  wrongful  act.  It  is  enough  if  he  willfully  or  negli- 
gently and  unlawfully,  by  force,  interfere  with  personal  prop- 
erty in  the  actual,  peaceable  and  exclusive  possession  of  an- 
other, without  the  consent  and  against  the  will  of  the  latter. 

§  27.  Acts,  Prima  Facie  Trespass. — The  law  is,  that  when 
the  rights  of  private  property  are  invaded  by  one  whose  acts 
would  constitute  a  tres])ass,  unless  he  is  ])rotected  by  legal  au- 
thority, then  it  is  incumbent  upon  such  person  to  show,  by  a 


TRESPASS,  537 

pre^tonderancc  of  evidence,  tliat  lie  was  justified,  by  legal  au- 
thority, to  do  the  acts  complained  of;  and  if  he  is  unable  to  do 
this,  he  must  be  regarded  as  a  trespasser.  It  is  not  enough 
that  such  a  person  intended  to  perform  an  official  duty,  but 
autluirity  of  law  for  the  act  complained  of  must  exist,  or  he 
will  be  a  trespasser.     Linhlom  vs.  Ramsey,  75  111.,  240, 

It  is  the  duty  of  every  one  who  assumes  to  interfere  with 
the  ])roperty  of  another,  to  ascertain  that  he  has  right  and 
autliority  so  to  do,  and  he  cannot  excuse  himself  to  any  one 
who  has  been  injured  by  his  unlawful  conduct,  by  merely 
showing  tliat  he  was  acting  in  good  faith  and  without  any  in- 
tention to  do  wrong.  And  if  the  jury  believe,  from  the  evi- 
dence, that  the  defendants,  or  any  of  them,  took  away  from 
the  plaintiff's  house  any  of  his  personal  piroijerty  forcibly  and 
■  against  his  will,  and  without  an}'-  right  or  authority,  as  ex- 
plained in  these  instructions,  then  the  jury  should  find  for  the 
plaintiff",  as  against  such  defendants,  and  assess  his  damages,  if 
any,  at  the  amount  of  his  actual  injury  or  damage,  as  shown 
by  the  evidence,  although  such  defendants  may  have  supposed 
they  were  right  in  what  they  did,  and  were  not  actuated  by 
any  malicious  or  wrongful  motive. 

§  28,  Trespass,  Ab  Initio. — If  the  jury  believe,  from  the 
evidence,  that  before,  and  at  the  time  of  the  alleged  trespass, 
the  plaintiff  was  the  owner  of,  and  in  the  actual,  peaceable 
possession  of  the  {horse)  in  question,  and  that  the  defendant 
F.,  against  the  will  of  the  said  plaintiff,  took  the  {Jiorse)  from 
his  possession,  and  (within  a  day  or  two  thereafter),  drove  and 
used  the  said  {Jwrse),  for  his  own  pleasure  and  profit,  and 
while  using  the  {horse),  willfully  and  wantonly,  or  without 
reasonable  care  and  caution,  drove  the  said  {horse)  at  an  un- 
reasonable rate  of  speed,  and  overheated  and  theieby  injured 
the  said  {horse),  then  the  jury  should  find  the  defendant  guilty 
of  trespass  in  the  original  taking  of  the  piroperty ;  although 
the  jury  may  further  believe,  from  the  evidence,  that  the  de- 
fendant was  at  the  time  a  constable,  having  in  his  hands  to 
serve  the  execution  introduced  in  evidence,  and  that  he  took 
said  {hoi'se)  by  virtue  of  said  execution. 

§   29.     Justification  by  an    Officer— Writ  of  Eestitntion.— The 

court  instructs  the  jury,  as  a  matter  of  law,  that  the  papers  in 


538  TRESPASS. ' 

tlie  case  of  {31.  B.  vs.  J.  W.),  in  the  justice's  court,  and  intro- 
duced in  evidence  in  this  case,  authorized  the  constable,  who 
served  the  writ  of  restitution  in  that  case,  to  use  so  much  force 
as  was  necessary  to  remove  the  jilaintiff  in  this  suit,  his  family 
and  property,  from  the  premises  described  in  that  writ.  And 
if  the  jury  should  find,  from  the  evidence,  that  the  premises 
described  in  that  writ,  are  the  same  as  those  described  in  the 
declaration  in  tliis  case,  and  that  the  trespasses  complained  of 
are  the  acts  done  in  execution  of  said  writ,  and  tliat  the  con- 
stable W.,  in  executing  the  wu'it,  used  no  more  force  than  was 
necessary  in  removing  the  plaintiff  and  his  family  and  goods 
from  the  premises  described  in  the  writ,  they  should  find  the 
defendants  not  guilty. 

The  court  instructs  the  jury,  that  the  papers  in  the  case  of 
(J/.  B.  vs.  J.  W.)  in  the  justice's  court,  and  introduced  in 
evidence  in  this  case,  authorized  the  constable,  who  served 
tlie  writ  of  restitution  in  that  case,  to  use  so  much  and  no 
more  force  than  ^?as  necessary  to  remove  the  plaintiff  in  this 
suit,  his  family  and  property  from  the  ]">remises,  described  in 
that  writ.  If  the  jury  should  find,  from  the  evidence,  that 
the  premises,  described  in  that  wi-it,  are  the  same  as  those 
described  in  the  declaration  in  this  case,  and  that  the  con- 
stable W.,  in  executing  the  writ,  used  more  force  than  was 
necessary,  in  removing  the  plaintiff  and  his  family  and  goods, 
and  tliereby  unnecessarily  injured  the  plaintiff  or  his  property, 
the  defendant  B.  would  not  be  guilty  of  such  excess  of  force 
or  injury,  unless  it  appears,  from  the  evidence,  that  he  ordered, 
advised  or  assisted  in  such  excess  of  force  and  injury,  or  after- 
wards approved  of  the  same. 

§  30.  Property  Taken  on  Execution.  -If  the  jury  believe, 
from  the  evidence,  that  before  the  execution,  introduced  in 
evidence  in  this  case,  came  into  the  hands  of  the  said  defend- 
ant F.,  the  plaintiff  had  bought  the  property  in  question,  in 
good  faith,  for  a  valuable  consideration,  of  the  defendant  in 
the  execution,  and  had  taken  the  same  into  his  possession, 
then,  if  the  jury  further  believe,  from  the  evidence,  that  the 
said  defendant  F.,  acting  as  constable,  seized  and  took  said 
property  from  the  possession  of  the  plaintiff,  upon  said  execu- 
tion, he  would  be  guilty  of  trespass  in  taking  said   property, 


TRESPASS.  639 

and  if  eitlier  of  the  other  defendants  are  shown,  bj  the  evi- 
dence, to  have  advifeed,  directed,  or  aided  the  said  F.  in 
taking  the  said  propert}',  then  the  jury  shonld  find  such 
other  defendants  also  guilty  of  said  trespass,  equally  with  the 
said  F. 

§  31.  What  Constitutes  a  Levy. — The  court  instructs  the 
jury,  that  to  constitute  a  valid  levy  upon  personal  property,  it 
must  be  within  the  power  and  control  of  the  officer  when  the 
levy  is  made;  and  lie  must  take  it  into  his  possession  within 
a  reasonable  time  thereafter;  and  when  the  character  of  the 
property  will  admit  of  it,  in  such  an  open,  public  and  unequiv- 
ocal manner  as  to  apprise  the  public  that  it  has  been  taken 
on  execution.  He  must  so  deal  with  the  property,  in  order  to 
constitute  a  good  levy,  as  that,  without  the  protection  of  the 
execution,  his  acts  would  make  him  a  trespasser. 

To  render  a  levy  on  personal  property  complete,  the  officer 
must  do  some  act,  which,  if  he  was  not  protected  by  his  writ, 
would  amount  to  a  trespass;  if  a  delivery  bond  is  not  given, 
he  must,  to  affect  third  persons,  take  the  property  into  his 
possession  as  soon  as  it  can  conveniently  be  done. 

It  is  not  a  sufficient  levy  of  an  execution  on  personal  prop- 
erty, as  against  third  persons,  for  an  officer  to  indorse  a  levy, 
with  an  inventory  of  the  property,  on  the  execution,  in  the 
presence  of  the  judgment  debtor,  while  the  projerty  is  before 
them;  the  officer  must  also  take  the  property  into  his  posses- 
sion.    Ilavely  vs.  Lowry^  30  111.,  446. 

§  32.  Levy  Invalid,  When. — The  court  further  instructs  the 
jury,  that  if  property  seized,  under  an  execution,  is  permitted 
to  remain  with  the  defendant  for  an  unreasonable  time  after 
the  levy,  with  the  consent  of  the  creditor,  the  levy  will  be 
deemed  fraudulent  and  void  as  against  a  subsequent  execution. 
Davidson  vs.  Waldron^  31  III.,  120. 

The  law  will  not  sustain  a  levy  which  is  only  colorable,  and 
designed  to  shield  the  property  from  the  claims  of  other  par- 
ties— and,  in  this  case,  though  the  jury  may  believe  that  the 
execution  in  question  was  levied  on  the  property  in  contro- 
versy at  the  time  indorsed  on  the  execution,  still,  if  the  jury 
further  Lelieve,  from  the  evidence,  that  such  levy  was  not 


540  TRESPASS. 

made  in  good  faitli,  aud  witli  a  lonajide  intention  of  satisfj^- 
ing  the  said  execution  out  of  said  jirupertj,  but  that,  with  the 
knowledge  and  consent  of  the  j^laiutili's  in  the  execution,  the 
said  levy  was  made  for  the  puri^ose  of  covering  up  said  jirop- 
ertj,  and  keeping  it  for  the  benetit  of  the  said  {defendant  in 
executioii)^  then  such  levy  was  absolutely  void,  as  against  the 

other  creditors  of  the  said ,  and  the  jurj-  should  so  find,  in 

determining  the  rights  of  the  parties  in  this  suit.  Murphy 
vs.  ISwadener^  33  Ohio  St.,  85. 

§  33.  Officer  Selling  Growing  Crops. — If  the  jury  believe, 
from  the  evidence,  under  the  instructions  of  the  court,  that 
the  defendant  F.  was  guilty  of  trespass,  in  manner  and  form 
as  alleged  in  the  declaration,  in  levying  upon  and  selling  the 
property  in  question,  and  that  the  defendant  B.  bought  the 
property  at  such  sale,  and  took  it  and  carried  it  away,  claim- 
ing it  under  such  sale,  then  B.  would  also  be  guilty  of  trespass 
jointly  with  said  F.,  although  such  taking  and  carrying  away 
was  done  at  a  subsequent  time. 

If  the  jury  believe,  from  the  evidence  and  under  the  instruc- 
tions of  the  court,  that  the  defendants,  or  either  of  them, 
levied  upon  aud  sold  the  property  in  question,  and,  in  so 
doing,  were  guilty  of  trespass,  as  charged  in  plaintiff's  declara- 
tion, and  that  the  defendant  B.,  after  the  sale,  entered  on  the 
premises  described  in  the  plaintiff's  declaration,  and  carried 
away  corn,  wheat  and  oats,  grown  thereon,  claiming  the  same 
under  such  sale,  then  the  jury  should  find  the  said  defendant 
B.  equally  guilty  with  the  other  defendants  who  are  shown, 
by  the  evidence,  to  have  conducted,  managed,  aided  or  advised 
said  sale. 

§  34.  Trespasser  by  Ratification  or  Adoption, — The  court  in- 
Btructs  the  jury,  as  a  matter  of  law,  that  if  an  act  of  trespass 
is  committed  in  the  name  of  another  person,  or  professedly  in 
the  interest  of  such  other  person,  and  the  latter  subsequently 
ratities  the  act  by  claiming  any  benefit  under  it,  he  would  be 
bound  by  the  act  to  the  same  extent  as  if  lie  had  expressly 
authorized  it  before  it  was  done.     Smith  vs.  Zcso,  42  Mich.,  6. 

If  the  jury  believe,  from  the  evidence,  under  the  instruction 
of  the  court,  that  the  defendant  A.  B.  (the  ofhcer),  is  guilty  of 


TRESPASS.  541 

a  wrongful  talcing  of  the  ])i-opei'ty  of  tlio  plaintiff  nndor  the 
execnticm  intruchiced  in  evidence,  and  tliat  after  the  j^roj^erty 
had  been  so  taken  tiie  plaintiif  went  to  the  defendant  C.  B. 
(plaintiff  in  execution),  and  recpiested  him  to  con-ent  to  a 
release  of  the  jn-operty  by  the  officer,  and  that  he  refused  to 
so  consent,  then  the  jury  may  find  the  said  defendants  both 
guilty,  although  the  defendant  C.  D.  was  not  ])resent  at  tl  e 
time  of  the  taking,  and  did  not  direct  the  officer  to  levy  on 
the  particular  property  in  question.  Cook  vs.  Jlojjpei-,  23 
Mich.,  511. 

§   35.     Landlord  Lialde — Seizure  under  Distress  Warrant. — The 

coni-t  instructs  the  jury,  that  if  an  officer,  in  executing  a  disn 
tress  wan-ant,  seizes  the  property  of  a  stranger,  and  the  land- 
lord ratifies  the  act,  and  retains  the  property,  after  knowledge 
of  the  facts,  he  will  thereby  render  himself  liable  for  the 
tresjniss  committed  by  the  officer.  Becker  vs.  Du  Pree,  75 
111.,  1G7. 

It  is  a  rule  of  law,  that  where  one  person  does  an  act  pro- 
fessedly for  the  benefit  of  another,  and  as  acting  for  him,  bnt 
without  any  previous  authority  whatever,  from  such  other 
person,  to  do  the  act,  if,  after  the  act  is  ]^erformed,  the  person 
for  whose  benefit  it  was  done,  with  full  knowledge  of  all  the 
facts,  adopts  and  ratifies  the  act,  by  availing  himself  of  the 
benefits  accruing  to  himself  therefrom,  he  will  be  liable  to  all 
the  consequences  to  the  same  extent  as  thongh  he  had  fully 
authorized  the  act  before  it  was  done. 

§  36.  When  Landlord  not  Liable.— The  court  instructs  the 
jury,  that  the  delivery  of  a  distress  w^arrant  to  an  officer,  with 
direction  to  execute  it,  will  not  alone  render  the  landlord  lia- 
ble for  the  unautJiorized  and  unlawful  acts  of  the  officer  and 
his  assistants;  and,  in  the  absence  of  proof  to  the  contrary,  it 
will  not  be  presumed  that  the  landlord  directed  the  officer  to 
seize  the  property  of  any  person  other  than  the  tenant  named 
in  the  warrant. 

Tlie  jury  are  further  instructed,  that  if  an  officer  executing 
a  distress  warrant  seizes  the  property  of  a  stranger,  without 
the  knowledge  or  consent  of  the  landlord,  the  landlord  will 
not  be  liable  as  a  trespasser  for  the  acts  so  done,  unless  he,  in 


543  TEESl'ASS. 

soino  inaTinD!',  with  knowledge  of  tlio  facts,  approve  and  ratify 
the  uet  after  it  is  done. 

§  37.  Actual  Damages  O  ilr. — Tf  the  jury  believe,  from  the 
evidence,  that  the  defendants,  or  either  of  them,  while  exe- 
cuting a  writ  (of  replevin)  against  J.  D.,  took  and  carried 
away  the  property  of  the  plaintiff,  as  alleged  in  liis  declara- 
tion, and  tliat  such  defenJants,  at  the  time  tlie  property  was 
taken,  believed  the  same  to  be  the  property  of  the  said  J. 
D.,  and  described  in  tlie  writ  of  rei)levin,  and  that  the  same 
was  not  taken  in  a  reckless,  w^anton,  oppressive  or  malicious 
manner,  and  that  all  of  the  pro])erty  so  taken  was  afterwards 
returned  to  the  plaintiff,  then  the  plaintiff  is  entitled  to  re- 
cover in  this  s;iit  no  more  damage  than  the  jury  believe,  from 
the  evidence,  he  actually  sustained. 

§  33.  Exemplary  Daraa^^es. — If,  from  the  evidence,  under 
the  instructions  of  the  court,  the  jury  tind  the  defendant  guilty, 
as  charged  in  the  declaration,  tlien,  if  tlie  jury  further  find, 
from  the  evidence,  that  the  taking  of  the  pi-operty  was  done 
under  such  circumstances,  or  in  sucli  a  manner,  as  evinced  a 
disposition  on  the  part  of  tlie  defendant  to  maliciously  and 
wantonly  possess  himself  of  such  property,  regardless  of  the 
plaintiff's  right  thereto,  then  the  jury  are  not  confined  in  their 
estimate  of  damages  to  the  actual  value  of  the  property  taken, 
but  they  may  assess,  in  addition  thereto,  such  punitive  or  ex- 
emplary damages,  by  way  of  punishment  to  the  defendant,  as 
to  the  jury  shall  seem  just  and  proper,  in  view  of  all  the  evi- 
dence in  the  case. 

TRESPASS  TO  REAL  ESTATE. 

§  39.  Actual  Possession  Sufficient,  etc. — The  court  instructs 
the  jury,  that  a  person  in  the  actual  and  peaceable  possession 
of  land,  will  be  ]n-esumed  to  be  the  owner,  in  the  absence  of 
any  proof  of  title,  and  he  may  maintain  trespass  against  any 
one  who  wrongfully  invades  his  possession, 

Altliough  possession  of  land  maj^  have  been  acquired  wrong- 
fully by  the  plaintiff,  this  will  not  justify  even  the  owner  of 
the  property  in  entering  and  taking  possession  forcibly,  against 


TRESPASS.  543 

til 3  will  of  tliG  person  in  possession.  Cooloy  on  Torts,  320; 
111.,  etc.,  vs.  CM,  82  111.,  183;  AuslhivQ.  Bailee/,  31  Yt,  219; 
m.  &  St.  L.  Ed.  Co.  vs.  Colh,  68  111.,  53;  Vcm  Aulen  vs. 
Munroe,  38  Mich.,  725. 

In  order  to  maintain  an  action  for  trespass,  it  is  only  neces- 
sary for  the  plaintiff  to  prove  that  lie  was  in  the  actual  and 
l)eaceab^e  possession  of  the  property  upon  which  the  trespass 
is  alleged  to  have  been  committed,  and  that  the  defendants,  or 
some  one  or  more  of  them,  unlawfully  interfered  with  such  pos- 
session. 

A  person  in  the  actual,  peaceaWe  po'^scssion  of  premises,  is 
presumed  to  be  there  rightfully,  and  no  one,  not  even  the 
owner  of  the  property,  has  a  right  to  go  u])on  the  premises 
and  forcibly  eject  the  person  so  in  possession,  or  remove  his 
property  therefrom  against  his  will,  nnless  the  person  so 
entering  lias  some  legal  process  from  a  court  of  competent 
jurisdiction,  authorizing  him  so  to  do. 

§  40.  Trespasser  by  Ratification.— The  conrt  instructs  the 
jury,  as  a  matter  of  law,  that  if  they  believe,  from  the  evi- 
dence, that  before  and  at  the  time  of  the  alleged  trespass,  the 
plaintiff  was  in  the  actual,  peaceable  possession  of  the  prem- 
ises in  question,  and  that  at  the  time  alleged  some  person  pro- 
fessing to  act  for  and  in  the  interest  of  the  defendant,  W.,  in 
the  absence  of  the  plaintiff,  and  against  his  will,  broke  into 
the  said  rooms  and  removed  the  plaintiff's  effects  therefrom, 
without  legal  authority  so  to  do,  as  explained  in  these  instruc- 
tions, and,  further,  that  immediately  after  all  this  had  been 
done,  the  defendant,  W.,  knowing  the  facts,  went  in,  and  by 
himself,  or  his  agent,  took  possession  of  the  premises,  and 
retained  such  possession,  this  would,  in  law,  be  a  ratification 
by  the  defendant,  W.,  of  the  acts  of  such  other  parties,  and 
he  would  be  liable  therefor  to  the  same  extent  as  though  he 
had  participated  in  the  acts  of  such  other  parties. 

§  41.  Trespass  by  an  Agent. — The  jury  are  instructed,  that 
the  law  is,  that  what  one  does  by  an  agent  is  the  same  as  if 
done  by  himself;  and  if  the  jury  believe,  from  the  evidence, 
that  the  defendant,  W.,  shortly  before  the  alleged  trespass, 
employed  A.  B.  as  his  agent  or  attorney  to  evict  the  plaintiff 


54:4:  TRESPASS. 

from  tlie  premises  mentione  1  in  the  declaration,  and  that  in 
pursuance  of  that  em])]ojnient,  and  in  the  way  of  his  said 
agency,  the  said  A.  B.  took  any  steps  towards  getting  the  pos- 
session of  said  property  away  from  the  plaintiff,  then  the  de- 
fendant, W.,  would  be  liable  for  all  the  acts  of  the  said  A.  B. 
in  attempting  to  obtain  such  possession,  to  the  same  extent  as 
if  he  had  done  the  same  acts  himself. 

§  42.  Entry  under  Legal  Process. — The  court  instructs  the 
jury,  that  this  is  an  action  against  three  defendants,  charging 
a  joint  trespass  on  real  estate,  and  if  the  jury  find,  from  the 
evidence,  under  the  instructions  of  the  court,  that  befoi'S,  and 
at  the  time  of  the  alleged  trespass,  the  said  defendant,  F.,  was 
a  constable,  and  had  in  his  possession,  to  execute,  the  execu- 
tion introduced  in  evidence,  and  by  virtue  thereof  had  levied 
upon  and  taken  in  execution  the  crops  in  question,  and  at  the 
time  of  the  alleged  trespass  entered  upon  the  land  for  the  pnir- 
pose  of  making  a  sale  of  said  property,  by  virtue  of  said  levy, 
and  that  the  defendants,  T.  and  B.,  entered  upon  said  land 
along  with  the  constable,  for  the  purpose  of  attending  said 
sale,  as  spectators  or  bidders  upon  the  property,  then  the  de- 
fendants are  not  liable  for  trespass  in  this  suit,  unless  they  un- 
necessarily injured  said  real  estate  or  the  crops  growing 
thereon,  or  other  property  situate  on  said  premises. 

§  43.  Trespasser  Ab  Initio. —  The  jury  are  instructed,  that  a 
person  obtaining  lawful  and  peaceable  entry  into  the  premises 
of  another,  may  become  a  trespasser  from  the  beginning,  by 
an  abuse  of  the  privilege  for  which  he  professed  to  enter; 
and  such  abuse  may  consist  in  doing  any  unlawful  act  or  thing 
injurious  to  the  occupier  of  the  premises  and  against  liis  will. 
Cooley  on  Torts,  462;  1  Hill,  on  Torts,  105;  Snydaeker  vs. 
Bwsse,  51  111.,  357;  Purrin(jton  vs.  Loring,  7  Mass.,  3S8; 
Kimball  vs.  C-uster,  73  111.,  3S9. 

Although  the  jury  may  find,  from  the  evidence,  that  the 
defendant,  F.,  at  the  time  of  the  alleged  tresjxass,  was  acting 
as  sheriff  of  this  county,  and  that  he  had  in  his  hands  to 
execute,  the  execution  introduced  in  evidence,  and  that  he 
entered  upon  the  i)rcmises  in  question  for  the  purpose  of 
making   a  levy  upon  the    personal    property  situate  thereon. 


TRESPASS.  545 

and  did  malcc  sncli  levy,  and  took  and  carried  away  paid  pi-op- 
erty,  professing  to  act  nnder  said  execution,  still,  if  the  jury 
further  believe,  from  the  evidence,  that  the  plaintiff  was  the 
owner  of  the  pro]3erty,  and  in  the  peaceable  ]^ossession  of  it 
at  the  time,  and  that  the  defendant,  F.,  in  making  said  levy 
and  in  taking  away  said  property,  did  not  act  with  reasonable 
care  and  prudence,  but  liandled  the  same  in  a  rough  and 
grossly  nogligent  manner,  and  that  the  goods  were  materially 
injured  thereby,  then  such  conduct  was  an  abuse  of  the  process 
of  court,  and  the  execution  furnishes  no  protection  to  the  said 
defendant,  F.,  for  the  acts  so  committed,  and  the  jury  should 
find  liim  guilty  of  trespass  in  making  the  original  entry  upon 
said  premises. 

The  law  is  that,  if  a  person  has  lawful  authority  to  enter 
the  premises  for  one  purpose  and  he  forcibly  enters  for  a 
different  purpose  against  the  will  of  the  person  in  possession, 
he  will  be  guilty  of  a  trespass.     Norton  vs.  Craig,  68  Me.,  275. 

§  44.  Entry  Obtained  by  Fraud. — The  jury  are  instructed, 
that  actual  injurious  force  is  not  necessary  to  constitute  tres- 
pass upon  the  premises  of  another,  and  that  if  a  person  obtains 
a  lawful  and  peaceable  entry  into  the  dwelling-house  of 
another,  and  then  abuses  the  privi'ege  for  which  he  professed 
to  enter,  he  will  be  a  tres])asser  from  the  beginning.  Such 
abuse  may  consist  in  doing  any  act  or  thing  injurious  to  the 
occui)ierof  the  premises. 

And  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
the  said  A.  B.,  by  preconcert  with  the  other  defendants,  and 
by  false  pretenses  or  by  any  subterfuge,  obtained  an  entrance 
into  the  dwelling-house  of  the  plaintilf,  and  after  such  entry, 
contrary  to  the  express  command,  or  against  the  known  wishes 
of  the  plaintiff's  {^ife),  unbolted  and  opened  the  door  of 
said  house  for  the  purpose  of  allowing  the  other  defendants 
to  enter,  and  that  they  did  then  and  there  enter,  then  the 
entry  of  all  the  defendants  was  a  trespass,  and  the  jury  should 
find  the  defendants  guilty.  KiirJjall  etal.  vs.  Custer^  73  111., 
389. 

§  45.     Joint  Trespassers. — The  court  instructs  the  jury,  as  a 
matter  of  law,  that  in  an  action  of  trespass,  if  it  appears  that 
35 


5i6  TEESPASS. 

a  trespass  has  been  committed,  all  who  encouraged,  advised 
or  assisted  in  the  act  of  trespass,  are  equally  guilt j,  ^vhether 
thej  were  present  and  took  part  in  the  act  or  not.  Barnes 
vs.  Ennenga^  63  la.,  497.    See  Boswell  vs.  Gates^  56  la.,  143. 

In  this  case,  if  the  jury  believe,  from  the  evidence,  that  the 
trespass  complained  of  in  the  plaintiff's  declaration,  was  actually 
committed  by  some  one,  then  the  law  is,  that  any  and  all  per- 
sons who  encouraged,  advised  or  assisted  in  such  trespass  are 
equally  guilty  with  the  person  or  persons  who  actually  com- 
mitted the  trespass,  by  going  upon  the  premises,  etc.  And  if 
the  jury  further  believe,  from  the  evidence,  that  any,  or  either 
of  the  defendants  encoui-aged,  advised  or  assisted  in  the  com- 
mission of  such  trespass,  they  should  find  such  person  or  per- 
sons guilty. 

If  the  jury  believe,  from  the  evidence,  that  before,  and  at 
the  time  the  trespass  is  alleged  to  have  been  committed,  the 
plaintiff  was  in  the  actual,  ]!eaceable  possession  of  the  premises, 
described  in  the  declaration,  and  that  in  his  absence  and  with- 
out his  knowledge  or  consent,  some  person  broke  open  the 
doors  and  entered  the  premises,  and  removed  therefrom  the 
personal  property  mentioned  in  the  declaration,  without  right, 
as  explained  in  these  instructions,  then  the  person  so  breaking 
into  said  premises,  and  every  other  person  who  commanded, 
encouraged,  advised  or  assisted  in  such  acts,  if  the  evidence 
shows  that  there  were  such  other  persons,  are  all  equally 
guilty  of  trespass. 

§  46.  Taking  Personal  Property,  Aggravation,  etc.  —  That 
while  this  is  an  action  for  an  alleged  trespass  to  real  estate, 
still,  the  taking  and  carrying  away  of  the  personal  property 
described  in  the  plaintiff's  declaration,  may  be  included  in 
estimating  the  damages  for  trespassing  on  the  real  estate; 
provided,  the  jury  find,  from  the  evidence,  that  the  defendants 
are  guilty  of  trespassing  upon  the  real  estate,  as  charged  in 
the  declaration,  and  that  they  did  take  and  carry  away  such 
personal  property. 

TKESPASS  BY  ANIMALS. 

Note. — The  statutes  and  local  laws  and  customs  of  the  diflFerent  states, 
relating  to  domestic  animals  running  at  large,  as  well  as  those  requiring  the 


TRESPASS.  547 

owner  of  lands,  under  certain  circumstance?,  to  protect  them  by  a  sufficient 
fence,  are  so  various,  it  is  not  easy  to  classify  them.  Souie  of  those  laws 
provide,  that  unle«s  the  owner  causes  his  lands  to  be  fenced  with  such  a 
fence  as  is  prescribed,  he  shall  maintain  no  action  for  trespasses  commitfed 
by  domestic  animals  on  said  land.  In  some  states  th3  common  law  requir- 
ing tlie  owners  of  such  animals  to  keep  theui  on  his  own  land,  is  in  force. 
In  other  states,  from  the  earliest  period,  domestic  animals  have  been 
allowed  to  run  at  la-ge  in  the  highways,  and  on  unenclosed  lands,  either  by 
general  law  or  custom  or  by  vote  of  the  township  or  county.  A  more  com- 
mon provision  is  one  requiring  the  respective  owners  of  adjoining  premises 
to  build  and  maintain  one  half  of  the  partition  fence  between  them,  the 
respective  portions  being  determined  by  agreement,  by  prescription  or  by 
an  order  of  the  fence  viewers. 

In  preparing  instructions  relating  to  these  matters,  no  attempt  has 
been  made  to  do  more  than  to  furnish  a  few, examples  of  the  most  general 
character. 

§  47.  Animals  not  Perinittecl  to  Run  at  Large. — The  court 
instructs  the  jury,  that  by  the  general  law  of  this  state  it  is 
unlawful  to  suffer  or  permit  domestic  animals,  such  as  horses, 
cattle,  sheep  and  hogs,  to  run  at  large  in  the  public  streets 
or  highways,  or  on  other  unenclosed  lands  (except  it  be  in 
counties,  towns,  cities  or  villages  where  such  running  at  large 
is  authorized  by  a  vote  of  the  legal  voters  of  such  counties, 
towns,  cities  or  villages). 

§  48.  Owner  of  Lands  not  Bound  to  Fence. — The  jury  are 
further  instructed,  that  no  person  in  this  state  is  bound  to 
fence  his  lands  or  premises  against  domestic  animals,  such  as, 
etc.,  except  in  those  counties,  cities  or  towns  where,  by  a  spe- 
cial vote  ctf  the  legal  voters  thereof,  such  animals  are  permit- 
ted to  run  at  large.  And  the  jury  are  further  instructed,  that 
there  is  no  legal  evidence  in  this  case,  that  domestic  animals 
could  lawfully  be  permitted  to  run  at  large  in  tlie  town  of  S., 
at  the  time  when  the  trespasses  complained  of  are  alleged  to 
have  been  committed. 

If  the  jury  believe,  from  the  evidence,  that,  at  the  time  of 
the  alleged  trespass,  the  plaintiff  was  in  the  actual  and  peace- 
able possession  of  the  premises  in  question,  and  that  the  de- 
fendant, at  the  sine  time,  suffered  and  permitted  his  hogs  and 
cattle  to  run  at  large,  and  that  while  they  wei-e  so  running  at 
large  they  entered  and  went  upon  the  plaintiff's  field,  as 
charged  in  the  declaration,  and  that  the  plaintiff'  was  thereby 


5-18  TEESPASS.  , 

damaged,  tlien  he  is  entitled  to  recover  in  tliis  case,  wlietlior 
his  premises  were  pru'.eeted  by  a  good  and  sufficient  fence  or 
not. 

§  49.  Animals  Lawfully  Rimning  at  Large— Land  Protected  by 
Fence. — If  tlie  jury  believe,  from  the  evidence,  that,  at  the 
time  of  the  alleged  trespasses,  the  plaintiff  was  in  the  actnal 
and  peaceable  possession  of  the  premises  in  question,  and  had 
the  same  protected  by  "a  good  and  sufficient  fence  "  {or  by  a 
good  and  legal  fence,  as  exj)lained  in  these  instructions^  along 
the  highway,  and  that  the  defendant's  cattle  and  hogs  brolce 
and  entered  the  plaintiff''s  field,  as  charged  in  the  declaration^ 
and  further,  that  tlie  plaintiff's  crops  were  tliereby  damaged  ; 
then  the  jury  should  find  the  defendant  guilty  ;  and,  in  such 
case,  it  is  immaterial  whether  the  defendant  knowingly  jier- 
mitted  the  animals  to  run  at  large,  or  whether  they  escaped 
from  his  pasture  into  the  highway  without  his  fault. 

The  jury  are  instructed,  that  in  this  state,  cattle  and  horses 
{except  hulls,  etc.)  are  permitted  to  run  at  large  on  the  higli- 
ways  and  open,  unenclosed  grounds,  and  all  persons  leave  their 
lands  and  crops  exposed  to  the  intrusion  of  such  animals  at 
their  peril.  And  in  order  to  recover  for  injuries  done  to  crops, 
l)y  cattle  escaping  onto  the  land,  where  sucli  crops  are  grow- 
ing, from  the  highway,  or  from  unenclosed  lands  adjoining, 
the  injured  party  must  show  that  he  has  his  premises  sur- 
rounded by  "a  good  and  sufficient  fence"  {or  hy  good  and  law- 
ful  fence,  etc). 

Tliough  the  jury  may  believe,  from  tlie  evidence,  that  the 
defendant's  cattle  went  upon  plaintiff's  land,  and  injured  the 
crops  tliereon  growing,  as  stated  in  liis  declaration,  still, 
if  the  jury  further  believe,  from  the  evidence,  that  tlie  said 
premises  Avere  not  enclosed  by  "a  good  and  sufficient  fence" 
(or  hj  a  good  and  lawful  fence,  etc.),  and  that  tlie  cattle  went 
upon  said  j')remises,  from  the  adjoining  highway  or  unenclosed 
fields,  by  reason  of  tliere  being  no  good  and  sufficient  fence 
around  [)laintift''s  land,  then  he  cannot  recover  in  this  case, 
and  the  jury  should  find  the  defendant  not  guilty. 

§  50.  What  a  Sufficient  Fence — By  Statute.— The  jury  are 
instructed,  in  this  state,  fences  (four  and  one-half  feet  high. 


TKESl'ASS.  5 -±9 

in  good  repair,  consisting  of  raiis,  timber,  boards  and  posts, 
hedges,  or  whatever  the  fence  viewers  of  the  town,  where  the 
fence  is  situated,  shall  consider  equivalent  to  a  fence,  four  and 
a  half  feet  high,  consisting  of  rails,  timber,  or  boards  and 
posts),  are  deemed  in  law  legal  and  sufficient. 

§  51.  Animals  Escapiuis:  through  Division  Fence. — The  conrt 
instructs  the  jury,  that  when  two  or  more  persons  have  en- 
closed lands  adjoining,  each  owner  is  required  by  law  to  make 
and  maintain  a  just  proportion  of  the  division  fence  between 
them,  and  the  part  and  proportion  of  such  fence,  to  be  built 
and  maintained  by  each,  may  be  fixed  and  settled  by  the  agree- 
ment of  the  parties  themselves;  and  if  they  are  unable  to 
agree,  then  by  the  fence  viewers  of  the  towm. 

When  the  owners  of  adjoining  lands  are  unable  to  agree, 
concerning  the  proportion  of  fence  to  be  made  or  maintainedj 
the  matter  may  be  submitted  to  the  fence  viewers  of  the 
town,  as  provided  by  the  statute,  and  their  decision,  w^hen 
made,  will  be  binding  upon  both  the  parties. 

In  order  to  maintain  the  issues  on  his  part,  the  plaintiff  has 
only  to  prove  that  he  was  in  the  possession  of  the  premises 
described  in  the  declaration,  at  the  time  of  the  alleged  tres- 
pass, and  that  the  cattle  and  hogs  of  the  defendant  went  upon 
said  prejnises,  as  charged,  through  that  portion  of  the  fence 
which  it  was  the  duty  of  the  defendant  to  make  and  maintain 
— if  the  evidence  shows  that  he  was  bound  to  make  and  main- 
tain any  portion  of  said  fence,  as  explained  in  these  instruc- 
tions. 

If  the  jury  believe,  from  the  evidence,  that  the  cattle  and 
hogs  of  the  defendant,  broke  and  entered  the  plaintiff's  field,  . 
as  charged  in  the  declaration,  then  it  is  wholly  immaterial  to 
the  issues  in  this  case,  whether  the  plaintiff's  fence  along  the 
highway,  or  his  portion  of  the  division  fence,  was  in  good  or 
bad  condition,  provided,  the  jury  further  believe,  from  the 
evidence,  tliat  the  animals  in  question  did  not  get  through 
plaintiff's  fence  along  the  highway,  nor  through  his  portion 
of  the  said  division  fence. 

§  52.  Burden  of  Proof. — That  the  burden  of  proving  the 
trespasses,  complained  of  in  plaintiif's  declaration,  is  upon  the 


550  TRESPASS. 

plaintiff,  and  if  lie  lias  failed  to  prove  the  same,  or  anj^  of 
them,  by  a  preponderance  of  evidence,  then  the  jury  must  find 
for  the  defendant,  as  to  all  the  trespasses  which  the  plaintiff 
has  failed  so  to  prove. 

§  53.     Entry  through  Plaintiffs  Portion  of  the  Fence. — If  the 

jury  believe,  from  the  evidence,  that  at  the  time  in  question, 
there  was  a  line  fence  between  the  lands  of  plaintiff  and  defend- 
ant, that  a  portion  of  said  fence  was  owned  by  each  of  the 
parties,  then  each  was  bound  to  keep  in  repair  his  own  portion 
of  the  fence;  and,  if  the  jury  further  believe,  from  the  evi- 
dence, that  the  plaintiff  did  not  keep  his  portion  in  goe)d  and 
sufficient  repair,  and  that  by  reason  of  such  insufficiency,  the 
aniu'ials  in  question  came  upon  the  plaint  ff's  land,  and  com- 
mitted the  trespasses  complained  of,  then  the  defendant  is  not 
liable  for  any  of  the  injuries  occasioned  by  said  stock.  Scott 
vs.  BucT^,  85  111.,  334. 

If  the  jury  believe,  from  the  evidence,  that  the  division 
fence  in  question,  before  the  time  of  the  alleged  trespasses  had 
been  divided  between  the  adjoining  o\vnors  by  agreement,  and 
the  portion  of  the  fence  to  be  kept  in  repair  by  each  had  been 
assigned  to  him,  so  that  each  had  a  designated  portion  of  the 
fence  to  build  and  keep  in  reiair,  then  it  was  the  duty  of  the 
defendant  to  keep  up  such  a  fence  on  his  portion  of  the  line,  as 
would  turn  his  own  stock,  at  all  events.  And,  if  the  jury  fur- 
ther believe,  from  the  evidence,  that  the  defendant  did  not  do  so, 
and  that  his  stock  got  upon  the  plaintiff's  land,  as  charged  in 
the  declaration,  through  that  portion  of  the  fence  M'hicli  the 
defendant  was  bound  to  build  and  repair,  and  then  injured  the 
plaintiff's  cro])s,  then  the  jury  should  find  for  the  plaintiff. 
Osburnvs.  Adavis,  70  111.,  281. 

The  law  of  this  state,  requiring  the  owners  of  adjoining 
lands  that  are  enclosed  to  each  build  and  maintain  his  propor- 
tion of  the  division  fence,  is  intended  exclusively  for  the  ben- 
etit  of  said  adjoining  owners;  and  in  this  case,  if  the  jury 
believe,  from  the  evidence,  that  the  cattle  of  the  defendant 
broke  into,  or  went  upon  the  lands  of  one  A.  B.,  adjoining 
the  lands  of  the  plaintiff,  and  from  thence  came  in  upon  the 
lands  of  the  plaintiff,  and  injured  the  crops  there  growing, 
then  the  defendant  is  liable  for  such  injury,  whether  the  fence 


TRESPASS.  551 

between  tlic  pLaiiitiff's  land  and  that  of  the  said  A.  B.  was  a 
good  and  sufficient  fence  or  not.  Cooley  on  Torts,  339; 
Lawrence  vs.  Comls,  37  IT.  H.,  331;  Loi'd  vs.  Woivmoood, 
29  Me.,  2S2;  Lynns  vs.  MerricJc,  105  Mass.,  71;  Cooh  vs. 
Morea,  33  Ind.,  497;  Aylesworth  vs.  Herrington^  17  Mich., 
417;  McManus  vs.  Finan,  4  la.,  2S3. 

Wlien  two  or  more  persons  have  adjoining  lands  enclosed 
in  one  common  field  by  outside  fences,  and  have  no  division 
fence,  then,  if  there  is  no  agreement  or  arrangement  between 
them  to  the  contrary,  each  person  is  bound  to  keep  his  own 
stock  upon  his  own  land,  and  if  he  does  not  dd  so,  and  injury 
results  therefrom  to  an  adjoining  owner,  he  will  be  liable  in 
trespass  therefor.  1  Addi.  on  Torts,  §  379;  Bradbury  vs. 
Gilford,  53  Me.,  99;  Aylesworth  vs.  Herrimjton,  17  Mich., 
417. 


CHAPTER  XLiy. 

TKOYER. 


Sro.     1.  By  general  owner. 

2.  By  one  having  a  special  property. 

3.  By  one  in  possession. 

4.  What  interest  the  plaintiff  must  have. 

5.  Suit  by  servant  or  agent. 

6.  Burden  of  proof. 

7.  Plaintiff  must  prove  conversion. 

8.  Property  lost — Negligence  of  defendant. 

9.  Demand  and  refusal,  prima  facie  evidence  of  conversion. 

10.  When  demand  not  necessary. 

11.  What  amounts  to  a  conversion. 

12.  Title  claimed  by  purchase  from  the  owner. 

13.  Tender. 

14.  Price  not  paid,  right  to  possession,  when. 

15.  Temporary  possession,  not  delivery,  when. 

16.  Suit  against  ■warehousemen. 

17.  Warehousemen's  lien. 

18.  Tender,  waiver  of  production  of  money. 

19.  Measure  of  damages  in  suit  by  general  owner. 

20.  Damages  in  suit  by  one  having  special  property. 

21.  Damages  in  suit  by  lien  holder. 

22.  Suit  against  lien  holder. 

23.  Price  paid  not  conclusive  evidence  of  value. 

24.  Price  paid  2}>'iinnfacie  evidence  of  value. 

25.  What  constitutes  a  sufficient  demand. 

26.  Demand  by  agent — Ground  of  refusal  must  be  stated. 

§  1.  By  General  Owner. — The  court  instructs  the  jiiry,  that 
if  they  believe,  from  the  evidence,  that  the  plaintiff  was  the 
owner  of  the  property  in  question,  and  entitled  to  the  posses- 
sion thereof,  before  and  at  the  time  of  the  commencement 
of  this  suit,  and  that  while  he  was  so  entitled  to  such  posses- 
sion, and  before  the  commencement  of  this  suit,  he  made  a 
legal  demand  of  the  defendant  for  the  property,  and  that  the 
defendant  tlien  had  the  proj^erty  in  his  possession,  and  refused 
and  neglected  to  surrender  the  same  to  the  plaintiff  upon  such 
demand,  this  would   be  evidunce  of   the  conversion   of   the 

(552) 


TKOVEE.  bi)6 

property  by  the  defendant,  and  the  jury  should  find  for  the 
plaintiff.  Piiterbano^h's  Com.  Law,  497;  Moore's  Justice, 
§  301;  4  Am.  &  Eng.  Encj.,  117;  Cuoley  on  Torts,  442. 

§  2.  By  One  Having  a  Special  Property. — If  the  jury  believe, 
from  the  evidence,  that  the  {animal)  in  question  was  not  the 
property  of  the  defendant,  but  was  the  property  of  one  A.  13., 
and  that  the  said  A.  B.  had  placed  the  same  in  the  possession, 
and  in  the  care  and  custody,  and  under  the  control,  of  tlie 
plaintiff,  until  he  should  call  for  the  same,  and  that  the  plaint- 
iff, at  the  time  of  the  alleged  conversion,  was  entitled  to  the 
possession  of  the  {aniinal)  then  the  j^laintiff  had  such  a  pro]D- 
erty  in  it  as  will  enable  him  to  sustain  this  action;  provided, 
the  jury  further  find,  from  the  evidence,  that  the  defendant 
wrongfully  took  said  [iroperty  and  converted  the  same  to  his 
own  use,  as  charged  in  ]ilaintiff's  declaration.  Cooley  on 
Torts,  443 ;  Moore's  Justice,  §  304. 

§  3.  Suit  by  One  in  Possession. — That  when  a  person  is  in 
the  rightful  and  peaceful  possession  of  property,  and  a  stranger, 
or  person  not  the  owner,  wrongfully  takes  it  from  him,  and 
converts  it  to  the  taker's  own  use,  then  the  person  in  posses- 
sion can  recover  the  full  value  of  the  property  in  this  form 
of  action  for  the  wrong  done — his  possession  being  sufficient 
evidence  of  title  in  liim  against  a  wrong-doer,  or  one  showing 
no  right  or  title  to  the  property.  Cooley  on  Torts,  445;  1 
Hill,  on  Torts,  495;  Craig  vs.  Gilbreth,  47  Me.,  416;  Moorman 
vs.  QuicJc,  20  Ind.,  67;  Boweii  vs.  Fen.iier\  40  Barb.,  383; 
Moore's  Justice,  §  305. 

Though  you  may  believe,  from  the  evidence,  that  the  said 
A.  B.  was  the  general  owner  of  the  property,  and  is  now  enti- 
tled to  the  possession  thereof,  still,  if  you  further  believe, 
from  the  evidence,  that  before  the  time  of  the  alleged  con- 
version, the  said  A.  B.,  as  such  owner,  placed  the  said  prop- 
erty in  the  possession,  and  under  the  care  and  control,  of 
the  plaintiff,  for  the  purpose  of  having  the  same  fed  and  taken 
care  of  by  him  {or  stored  hy  him),  then  such  right  and  posses- 
sion by  the  plaintiff  of  the  property  in  question  constitutes  a 
sufficient  special  property  therein  to  enable  the  plaintiff  to 
maintain   this  suit;   provided,  you  further  believe,  from  the 


554  TROVEE. 

evidence,  that  before  the  commencement  of"  this  suit,  and 
while  the  plaintiff  so  had  it  in  his  possession,  tJie  defendant 
wrongfully  took  the  pro|  ertyand  converted  it  to  his  own  use, 
within  the  meaning  of  the  law,  as  explained  in  these  instruc- 
tions. 

That  although  the  law  is,  that  to  entitle  the  plaintiff  to 
recover  in  this  form  of  action,  he  must  show  that  at  the  time 
of  the  alleged  conversion  he  was  the  general  owner  of  the 
property,  and  entitled  to  the  immediate  possession,  or  that  he 
had  a  special  right  or  interest  in  the  property,  with  an  im- 
mediate right  of  possession,  yet,  in  this  case,  if  you  iind,  from 
the  evidence,  that  the  general  ownership  of  the  property  %vas. 
in  one  A.  B.,  but  that  the  plaintiff  had  the  actual  possession, 
charge  and  control  of  the  property  at  the  time  of  the  alleged 
conversion,  not  as  the  agent  or  servant  of  the  said  A.  B.,  then 
the  plaintiff  had  such  a  property  in  the  {animal)  as  will  en- 
able him  to  recover  in  this  suit;  provided,  you  find  the  de- 
fendant guilty  of  the  wrongful  conversion  of  the  property,  as 
charged  in  the  declaration.  Cooley  on  Torts,  442;  Stephenson 
vs.  Little,  10  Mich.,  433;  Owens  vs.  Weedman,  82  111.,  409; 
Dudley  vs.  Ahner,  52  Ala.,  572;  Staples  vs.  Smith,  48  Me., 
470;  1  Hill,  on  Torts,  495. 

§  4.  What  Interest  Plaintiff  Must  Have. — The  court  instructs 
the  jury,  that  this  is  what  is  known  in  law  as  an  action  of 
trover,  or  trover  and  conversion,  and,  to  entitle  the  plaintiff  to 
recover,  the  jury  must  believe,  from  the  evidence,  that  the 
plaintiff  was  the  absolute  owner  of  the  property  in  question, 
or  else  that  he  had  some  special  interest  therein,  which 
entitled  him  to  the  possession  of  the  propei'ty  at  the  time  of 
the  alleged  conversion.  Cooley  on  Torts,  442 ;  2  Greenl.  on 
Ev.,  §  637. 

§  5.  Suit  by  Servant  or  Ajrent. — The  jury  are  further  in^ 
structed,  that  when  a  person  has  ]iersonal  property  in  his  care 
and  custody,  as  the  servant  or  agent  of  the  owner,  and  the 
property  is  taken  from  the  possession  or  premises  of  the 
owner  (or  strays  away,  and  is  taken  u])  by  a  person  not  the 
owner),  then  the  duty  devolving  upon  the  servant  or  agent, 
as  such,  will  not  entitle  him  to  maintain  an  action  of  trover  for 


TEOVER.  555 

the  property.     Cooley  on  Torts,  4-i7;  Farmers'  BJc.  vs.  Mc- 
Kee,  2  Penii.  St.,  318. 

§  6.  Burden  of  Proof. — The  court  instructs  the  jury,  that  in 
order  to  rrjaintain  this  action,  the  plaintiff  must  prove,  by  a 
preponderance  of  evidence,  that  he  was  either  the  general 
owner  of  the  property  in  controversy,  and  lawfully  entitled  to 
the  possession  thereof  at  the  time  of  the  alle.ojed  conversion, 
or  that  he  had  some  special  interest  in  it  at  the  time  of  the 
alleg'cd  conversion,  which  entitled  him  to  the  possession  of  the 
property;  and  if  the  jury  believe,  from  the  evidence,  that  at 
the  time,  etc.,  the  plaintiff'  was  not  the  general  owner  of  the 
property,  and  had  no  special  interest  in  it,  but  was  holding  it 
as  the  more  servant  or  agent  of  the  owner,  then  they  must 
■  Und  for  the  defendant.     2  Greenl.  on  Ev.,  §  636  and  642. 

In  order  to  sustain  this  action,  the  plaintiff  must  show,  by  a 
preponderance  of  evidence,  that  at  the  time  he  demanded  the 
{animal)  from  the  defendant,  if  such  demand  has  been  proved, 
he  was  the  owner  of  the  property,  and  entitled  to  the  imme- 
diate possession  thereof,  or  that  he  had  some  right  or  interest 
in  the  same,  which  entitled  him  to  the  possession  of  it  at  the 
time;  and  if  you  find,  from  the  evidence,  under  tlie  instruc- 
tion of  the  court,  that  he  has  failed  to  prove  either  of  these 
things,  by  a  preponderance  of  evidence,  then  you  should  find 
for  the  defendant.     Forth  vs.  Pui'sley^  82  111,,  152. 

§  Y.  Plaintiff  Must  Prove  Conversion. — That  to  warrant  a 
verdict,  in  this  case,  for  the  plaintiff,  the  jury  must  find,  from 
the  evidence,  not  only  that  the  plaintiff'  was  the  general  or 
B])ecial  owner  of  the  property,  with  the  right  to  immediate 
possession  at  the  time  of  the  alleged  conversion,  but  it  must 
further  appear,  from  the  evidence,  that  the  defendant  wrong- 
fully converted  the  property  to  his  own  use.  Greenl.  on  Ev., 
§  636,  642;  Moore's  Justice,  §  30T. 

You  are  instructed  that  a  wrongful  taking  and  carryins^ 
away  of  the  personal  property  of  another  does  not  alone  con- 
stitute trover,  or  trover  and  conversion.  To  render  the  taker 
liable,  it  must  further  appear  that  the  property  was  taken  and 
carried  away  by  the  person  taking  it,  with  an  intent  to  convert 
the  same  to  his  own  use,  or  that  he  has  since  the  taking  actually 


556  TEOVEK. 

converted  it  to  his  own  use.  And  in  tins  case,  althono-li  yon 
may  believe,  that  tlie  defendant  wi'ongfully  took  and  removed 
the  property  mentioned  in  the  declaration,  and  placed  the 
same  in,  etc.,  fur  safe  keeping,  intending  to  then  store  it  for 
the  use  of  the  plaintiff,  and  to  hold  the  same  subject  to  his 
order,  and  so  notified  the  plaintiff,  then  the  defendant  would 
not  be  guilty  of  a  wrongful  conversion  of  the  property. 
Niemetz  vs.  ISt.  Louis,  etc.,  5  Mo.  App.,  59. 

Although  you  may  believe,  from  the  evidence,  that  the  de- 
fendant came  rightfully  into  the  possession  of  the  property  in 
question  by  finding  the  same  (or  taking  the  same  up  as  an  es- 
tray)  still,  if  you  furtlier  believe,  from  the  evidence,  that  the 
plaintiff  was  the  actual  owner  of  tlie  property,  and  entitled  to 
the  possession  thereof,  and  that  these  facts  were  known  to 
defendant,  or  that  he  had  good  reason  to  believe  them  to  be 
true,  and  that  he  then,  knowingly  and  intentionally,  converted 
the  same  to  his  own  use  by  selling  the  same,  then  this  would 
constitute  a  wrongful  conversion  within  the  meaning  of  the 
hiw,  and  you  should  find  for  the  plaintiff. 

§  8.  Property  Lost— Negligence  of  Defendant. — -If  the  jury 
believe,  from  tlie  evidence,  under  the  instructions  of  the  court, 
that  the  defendant  came  riglitfally  into  the  possession  of  the 
property,  and  while  he  held  it  so  in  possession,  and  before  any 
demand  was  made  on  him  for  it,  tlie  {animal)  was  accidently 
killed,  without  any  willful  intention  on  tlie  part  of  tlie  defend- 
ant {or  that  the  said  goods  were  lost  or  stolen  out  of  the  posses- 
sion of  the  defendant),  though  he  may  have  been  guilty  of 
negligence  in  that  behalf,  then  the  plaintiff"  cannot  recover  in 
this  suit,  althougli  the  juiy  may  believe,  from  the  evidence, 
that  a  demand  was  made  by  the  plaintiff  upon  the  defendant 
for  the  property  before  the  property  was  commenced.  1  Ad- 
dison on  Torts,  §  407,471;  Cooley  on  Torts,  449;  Bovolin  vs. 
Nye,  10  Cush.,  410. 

§  9.     Demand  and    Refusal   Prima  Facie    Evidence,  etc. — The 

jury  are  instructed,  that  when  one  person  has  property  of  an- 
other, whether  rightfully  or  wrongfully,  in  his  possession,  and 
the  owner  is  entitled  to  the  immediate  possession  of  the  ])rop- 
erty,  then  a  demand  for  such  possession  by  the  owner  and  a 


TROVER.  557 

refn?;al  to  deliver  the  property  by  tlie  one  so  having  it  in  pos- 
session, is  prima  facie  evidcncQ  of  a  wrongful  conversion  of 
the  property  to  his  own  use  by  the  latter.  4  Am.  &  Eng. 
Ency.,  115. 

§  10.  AVlion  Demand  not  Necessary. — The  Jury  are  further 
instructed,  as  a  matter  of  law,  that  v;hile,  in  some  cases,  a  de- 
mand by  the  owner,  for  the  possession  of  property  in  the 
hands  of  another,  and  a  refusal  to  deliver  the  same  by  such 
other  person,  is  prima  facie  evidence  of  a  wrongful  conver- 
sion of  the  property  to  his  own  nse  by  the  person  so  having  it 
in  his  possession,  still,  such  demand  and  refusal  are  never  essen- 
tial before  commencing  a  suit  to  entitle  the  ]:)laintift'  to  recover; 
provided,  it  appears,  from  the  evidence,  that,  before  the  com- 
mencement of  this  suit,  the  defendant  had  actually  converted 
the  property  to  his  own  use,  by  intentionally  killinor  or  destroy- 
ing it,  or  by  selling  or  otherwise  disposing  of  it  for  his  own 
benefit,  and  so  as  to  deprive  the  ]:»laintiff  of  it  without  his  con- 
sent. Gottlieb  vs.  Hartman,  3  Col.,  53;  Kenrick  v.  Mogei's, 
4  N.  W.  Kep.,  46. 

§  11.  What  Amounts  to  Conversion. — The  jury  are  instructed 
as  a  matter  of  law,  that  when  the  property  of  one  person 
comes  rightfully  into  the  possession  of  another,  to  be  held  by 
him  temporarily  for  some  specific  purpose,  and  when  that  is 
accomplished,  tlien  to  be  returned  to  the  owner,  if  the  person 
so  taking  possession  of  the  property  willfully  kills  or  destroys 
it,  or  sells  it,  or  otherwise  disposes  of  it,  for  his  own  use  and 
benefit,  and  so  as  to  deprive  the  owner  of  it  without  his  con- 
sent, this,  if  proven,  will  amount  to  a  wrongful  conversion  of 
the  property,  and  no  demand  for  the  possession  need  be  made 
by  the  owner  before  commencing  suit  to  recover  the  value  of 
the  propert3^  Cooley  on  Torts,  44S;  4  Am.  &  Eng.  Ency., 
108;  Moore's  Justice,  §  307. 

If  you  find,  from  the  evidence,  that  before  and  at  the  time 
of  the  alleged  c<)nversic)n,  the  ])laintiff  was  the  owner  of  the 
property  in  question,  and  entitled  to  the  immediate  possession 
thereof,  and  that  M'hile  the  plaintiff  was  such  owner  and  en- 
titled to  such  possession,  and  before  the  commencement  of  this 
suit,  the  defendant  wrongfully  took  the  property  into  his  pos- 


558  TKOVEK, 

session,  and  that  wliilo  the  property  was  so  in  his  possession 
the  {animal^  was  killed  (or  the  goods  were  lost  or  stolen  from 
his  possession),  before  the  commencement  of  this  suit,  this  will 
constitute  a  wrongful  conversion  of  the  property,  and  you 
should  find  the  defendant  guilty;  and,  in  such  case,  it  is  wholly 
immaterial  whether  the  plaintiff  made  a  demand  for  the  prop- 
erty before  commencing  the  suit  or  not.  1  Addison  on  Torts, 
§  471;  Cooley  on  Torts,  448. 

§  12.  Title  Claimed  by  Piiroliase  from  the  Owner. —  The  jui'y  are 
instructed,  that  as  between  the  parties  themselves,  the  title  to 
personal  property  passes  without  delivery  whenever  the  sale 
is  completed,  and  the  ]iarties  intend  it  as  such.  An  agree- 
ment to  sell  an  article  by  weight  or  measure,  where  the  article 
is  selected  and  identified,  and  the  price  agreed  upon,  may  be 
a  completed  sale  without  delivery,  if  the  parties  intend  it  as 
such.  Benj.  on  Sales,  §  311;  Riddle  vs.  Varnum,  20  Pick., 
280;  Beed  vs.  Burgess,  34  111.,  193;  Prescoit  vs.  LocJce,  51  K 
H„  94;  Bussell  vs.  Carrington^  42  N.  Y.,  118;  Morse  vs. 
Sherman,  106  Mass.,  430;  Lester  vs.  East,  49  Ind.,  588;  Wil- 
Mnson  vs.  Holiday,  33  Mich.,  386;  McClung  vs.  Kelley,  21 
la.,  508. 

As  between  the  parties,  delivery  is  not  essential  to  the  com- 
pletion of  a  sale  of  chattels.  If  the  sale  is  completed  and 
nothing  remains  to  be  done  but  to  deliver  the  property,  then 
the  purchaser  may  take  the  goods  at  any  time  after  the  sale; 
provided,  he  takes  them  before  any  lien  attaches  in  the  hands 
of  the  vendor  and  the  transaction  is  conducted  in  good  faith. 
Oruikshank  vs.  Cogswell,  26  111.,  366. 

If  you  believe,  from  the  evidence,  that  the  defendant  agreed 
to  sell,  and  did  sell,  the  {animal)  in  question  to  plaintiff  for 

S ,  and  that  it  was  agreed,  at  the  time,  that  he  should 

have  thirty  days  in  which  to  pay  the  money,  then  no  delivery 
was  necessary  to  vest  the  title  of  the  proi)erty  in  the  plaintiff". 

If  you  believe,  from  the  evidence,  that  the  defendant  bar- 
gained and  sold  the  {animal)  in  question  to  the  plaintiff,  at  a 
given  price,  to  be  delivered  when  paid  for,  and  that  the  plaint- 
iff" afterwards,  and  within  a  reasonable  time  thereafter,  and 
before  the  comn^encement  of  this  suit,  paid  the  purchase  jirice 
in  full,  or  paid  a  part  thereof,  and  tendered   to  the   plaintiff 


TEOVER.  559 

the  rcniainder,  and  tlien  demanded  tlie  possession  of  the 
property,  and  that  defendant,  upon  such  demand,  refused  to 
deliver  possession,  and  afterwards  sold  the  {a?ii7nal)  to  another 
person,  without  the  consent  of  the  plaintiff,  then  the  plaintiff 
is  entitled  to  recover  in  this  suit.     Ililliard  on  Sales,  119. 

§  13.  Tender. — The  jury  are  instructed,  that  a  tender  of 
any  amount  of  money,  if  proved,  in  this  case,  lias  the  same 
effect  on  the  rights  of  the  parties  as  a  payment  of  the  same 
amount  would  have  had  if  made  at  the  same  time.  Beuj. 
on  Sales,  §  712. 

§  14.  Price  not  Paid — Right  to  Possession,  When. — The  court 
instructs  the  juiy,  that  in  the  case  of  a  sale  of  personal 
property,  at  a  stipulated  price,  and  when  no  time  of  payment 
is  agreed  upon,  the  law  presumes  tliat  payment  is  to  bo 
made  at  the  time  of  delivery;  and  in  such  case,  until  the  pur- 
chase price  is  jiaid,  no  such  title  passes  to  the  purchaser  as 
will  enable  him  to  maintain  trover  against  the  vendor  for  the 
conversion  of  the  property,  unless  there  has  been  a  delivery 
of  the  property  under  the  sale,  or  a  tender  of  full  ])ayment 
has  been  made.  Benj.  on  Sales,  §  677;  Soutkivestern^  etc., 
Co.  vs.  Plant,  45  Mo.,  517 ;  Scudder  vs.  Bradhurry,  106 
Mass.,  422;  Mich.,  etc.,  Ed.  Co.  vs.  Phillips,  60  111.,  190. 

In  the  case  of  a  sale  of  personal  property  for  cash,  which  is 
not  paid  at  the  time,  and  the  property  remains  with  the  seller, 
he  has  a  right  to  retain  possession  of  the  property  until  he  is 
paid  in  full  therefor,  and  if  the  purchase  price  is  not  paid,  he 
may,  after  demanding  payment  of  the  purchaser,  and  waiting 
a  reasonable  time  thereafter  for  payment  to  be  made,  sell 
the  property  to  another  person  without  rendering  himself 
liable  to  an  action  of  trover  therefor,  nnlcss  such  payment  is 
either  made  or  tendered  in  full  before  such  sale  is  made. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  bought 
the  (Jioi'se)  in  question  from  the  defendant,  and  gave  his  note 
for  a  part  of  the  purchase  price,  and  that  the  defendant  has 
since  sold  the  note  to  a  third  person,  in  good  faith,  for  a  val- 
uable consideration,  and  before  the  note  became  due,  then,  for 
the  purposes  of  this  suit,  you  should  consider  the  case  as 
though  the  note  had  been  paid  and  the  {horse)  paid  for  in  full 
by  the  plaintiff. 


560  TKOVEE. 

§  15.  Temporary  Possession — Not  Delivery,  "VMien. — That  in 
the  case  of  the  sale  of  personal  property,  when  the  possession 
of  the  property  is  not  transferred  at  the  time  of  the  sale,  it  is 
not  enough  to  constitute  delivery  of  the  property  that  the 
purchaser  obtains  the  temporary  possession  or  control  of  the 
property  for  a  specific  purpose.  To  have  the  effect  to  vest 
the  title  in  the  purchaser  in  such  a  case,  the  jury  must  believe, 
from  the  evidence,  that  the  possession  was  transferred  by  the 
seller  to  the  purchaser  with  the  intention  of  vesting  the  title 
to  the  property  in  the  purchaser,  under  the  contract  of  sale. 

§  16.  Suit  against  Warehousemen. — If  the  jury  believe, 
from  the  evidence,  that  at  the  time  of  the  alleged  conversion 
the  property  in  controversy  was  the  property  of  the  plaintiffs, 
and  that  they  were  entitled  to  the  possession  of  it,  and  that 
the  defendants  then  had  the  same  in  their  possession,  and  if 
the  jury  further  believe,  from  the  evidence,  that  the  plaint- 
iffs, by  their  duly  authorized  agents,  demanded  the  property 
of  the  defendants,  and  that  they  refused,  without  right,  as  ex- 
plained in  these  instructions,  to  deliver  up  the  property,  this 
demand  and  refusal  \&  prhna  facie  evidence  of  a  con\'ersion  of 
the  property  by  the  defendants  to  their  own  nse. 

If  you  believe,  from  the  evidence,  that  the  property  in 
controversy  belonged  to  the  plaintiffs,  and  that  they  were  en- 
titled to  the  possession  of  the  same,  at  the  time  of  the  alleged 
conversion  of  the  property,  and,  also,  that  the  plaintiffs  de- 
manded the  same  of  the  defendants  before  the  commencement 
of  this  suit,  and  at  the  same  time  offered  to  pay  to  them  all 
the  freight,  storage  and  other  charges  which  had  accrued  upon 
the  ])roperty  in  question,  then,  if  you  further  find,  from  the 
evidence,  that  the  defendants  refused,  upon  such  demand,  to 
deliver  the  ]:)roperty  to  the  plaintiff's  unless  the  freight  and 
charges  upon  other  goods,  not  received  or  stored  by  the 
defendants  at  the  same  time  with  the  goods  in  question,  were 
also  paid,  then  these  facts  would  amount  to  a  wrongful  con- 
version of  the  property  by  the  defendants  to  their  own  use, 
and  you  should  find  the  defendants  guilty.  Edwd.  on  Bail., 
§  350,  351. 

§  17.  Warehonseman's  Lien. — The  court  instructs  the  jury, 
that  a  warehouseman,  on  receiving  goods  in  the  regular  course 


TKOVER,  561 

of  his  biisiiioss,  has  a  lien  TT])on  the  goodu  for  anj  advances 
wliich  he  may  have  made  to  the  cavi'ier  for  the  carriage  of  the 
goods,  and  also  for  liis  reasonable  charges  for  storage. 

And,  in  this  case,  if  you  believe,  from  the  evidence,  that  the 
defendants,  A.  and  J3.,  on  or  about,  etc.,  received  the  property 
in  question  in  the  regular  course  of  their  business  as  ware- 
housemen, and  paid  to  the  carrier  the  sum  of  $ ,  which 

had  accrued  for  the  carriage  of  the  goods,  and  afterwards  kept 
the  goods  in  store,  then  the  defendants  would  have  a  right  to 
retain  the  possession  of  the  goods  until  the  sum  advanced  by 
them,  and  all  proper  chai-ges  for  storage,  was  paid  or  tendered. 
Ilale  vs.  Barrett^  20  111.,  105. 

§  18.  Tender — Waiver  of  Production  of  Money. — If  the  jury 
believe,  from  the  evidence,  that  the  plaintiffs  were  the  owners 
of  the  property  in  question  at  the  time  of  the  alleged  demand 
and  tender,  and  that  the  defendants  then  had  the  same  in  their 
possession,  as  warehousemen,  claimmg  the  right  to  hold  the 
])roperty  until  certain  charges  thereon  should  be  paid,  and 
that  while  they  so  held  the  goods,  and  before  the  commence- 
ment of  this  suit,  the  plaintiffs,  by  their  agent,  made  a  demand 
on   the   defendants   for   the   property,  and   then   offered    to 

pay  the  sum  of  % upon   defendants'  claim  upon  said 

goods,  and  that  the  sum  so  offered  covered  all  that  was  then 
due  to  defendants  for  storage  and  all  other  charges  on  said 
goods,  and,  if  the  jury  further  believe,  from  the  evidence, 
that  upon  such  demand  and  offer  the  defendants  refused  to 
surrender  the  pro]")erty,  and  told  the  person  making  such  de- 
mand that  he  need  not  trouble  himself  to  take  out  the  money 
so  proposed  to  be  paid,  as  it  would  not  be  accepted,  nor  would 
the  goods  be  delivered,  unless  plaintiffs  first  paid  the  sum  of 

% ~  in  discharge  of  defendants'  claim  on  the  goods,  then 

this  was  a  waiver  of  the  necessity  for  producing  and  exhibit- 
ing to  the  defendants  the  money  so  proposed  to  be  paid  in 
order  to  constitute  a  good  tender  of  that  amount  for  the  pur- 
poses of  this  suit.  Benj.  on  Sales,  §  Y14;  Hazzard  v&.  Loring^ 
10  Cush.,  267;  2  Greenl.  Ev.,  §  603;  2  Pars,  on  K  &B.,  623. 

The  debtor  has  no  right  to  insist  that  the  creditor  shall 
admit  that  no  more  is  due  in  respect  of  the  debt  for  which 
the  tender  is  made.  He  may  exclude  any  presumption  against 
36 


5G2  TEOVEE. 

himself  that  lie  admits  the  payment  to  he  onh'  for  a  part,  hut 
he  can  go  no  further,  and  his  tender  will  not  he  good  if  he 
adds  a  condition  that  the  creditor  shall  acknowledge  that  no 
more  is  due.  Benj.  on  Sales,  §  722;  Buuoen  vs.  Owen,  11  Q. 
B.,  131. 

§  19.  Measure  of  Damages — Suit  by  General  Owner. — If, 
under  the  evidence  and  the  instructions  of  the  court,  you  find 
the  defendant  guilty,  then  the  measure  of  the  plaintiff's  dam- 
ages will  be  the  value  of  the  property  at  the  time  of  the 
conversion,  and  six  per  cent,  interest  thereon  since  that  date. 
Tenney  vs.  State  Batik^  etc.,  20  Wis.,  152;  Htird  vs.  TluUell^ 
26  Conn.,  389;  Yater  vs.  Mullen,  24  Ind.,  277;  Polh  vs. 
Allen,  19  Mo.,  467;  Cutter  vs.  Faiuiing,  2  la.,  580;  Eejpley 
vs.  Davis,  15  Mich.,  75. 

§  20.  Damages,  One  Hiivin^  Special  Property. — Though  the 
jury  may  believe,  from  the  evidence,  that  tho  defendants  are 
guilty,  still,  if  the  jury  fui'tlier  find,  from  the  evidence  and 
under  the  instructions  of  the  court,  that  the  plaintiff  was  not 
the  general  owner  of  the  property,  nor  responsible  to  the 
general  owner  for  its  return,  but  only  had  a  special  interest 
therein  as,  etc.,  then  he  can  only  recover  the  value  of  such 
special  interest.  And  if  the  jurj'  further  find  tliat  there  is  no 
evidence  before  them  tending  to  show  the  value  of  such 
special  interest,  then  the  jury  can  only  give  a  verdict  in  favor 
of  the  plaintifl:  for  nominal  damages. 

§  21.  Danias^es,  Lien  Hold.'Ar. — Though  the  jury  may  believe, 
from  the  evidence,  under  the  instruction  of  the  court,  that  the 
defendants  are  guilty  of  a  wrongful  conversion  of  the  property 
in  question,  still,  if  the  jury  further  believe,  from  the  evidence? 
that  the  plaintiff  was  not  the  general  owner  of  the  property, 
but  only  had  a  lien  thereon  to  secure  an  indebtedness  due  to 
him,  tlien  he  can  only  recover  the  amount  of  such  lien,  includ- 
ing principal  and  interest;  provided  you  find,  from  the  evi- 
dence, that  the  value  of  the  property  exceeds  the  amount  of 
such  inlebtedness.  And  in  case  the. jury  find  the  amount  of 
such  lien  to  be  greater  than  the  value  of  the  property,  then 
the  measure  of  damages  will  be  tho  value  of  the  property  at 
the  time  of  the  conversion,  with  six  per  cent,  interest  thereon. 


TROVER.  5G3 

§  22,  Suit  against  a  Lien  Holder. — If  the  jury,  from  the 
evidence,  under  the  instructions  of  the  court,  find  the  defend- 
ants guilty,  then  they  may  assess  the  plaintiff's  damages  at 
the  value  of  the  property  at  tlie  time  the  demand  was  made, 
with  interest  thereon  at  the  rate  of  {six)  per  cent,  per  annum 
from  that  time,  less  whatever  amount  the  jury  find,  from 
the  evidence,  was  due  to  the  defenilants  for  {/"/'eight  and 
charges). 

§  23.  Price  Paid  not  Conclusive  Evidence  of  Value. — The  jury 
are  instructed,  that  the  price  paid  or  agreed  to  be  paid  for  the 
{horse)  in  question  is  not  conclusive  evidence  of  the  value  of 
the  {horse).  The  jury  should  fix  the  value  of  the  property 
from  a  consideration  of  all  the  evidence  in  the  case  bearing 
upon  that  point. 

§  21.  Price  Paid  Prima  Facie  Evidence  of  Value. — While  the 
price  ])aid  for  the  property  in  question  is  not  conclusive  evi- 
dence of  its  value,  it  may  be  taken  into  account  and  considered 
by  the  jury,  with  the  other  evidence  in  the  case,  in  determin- 
ing what  was  the  actual  value  of  the  property. 

§  25.  The  Demand — Wliat  Constitutes. — The  court  instructs 
the  jury,  that  no  particular  form  of  words  is  necessary  in  mak- 
ing a  demand  for  tlie  possession  of  property  before  bringing  a 
suit.  If  tlie  jur}'-  believe,  from  the  evidence,  that,  before  com- 
mencing this  suit,  the  plaintiff  had  an  interview  with  the  de- 
fendant, and  that,  from  the  language  then  used  by  plaintiff, 
the  defendant  understood  the  plaintiff  came  for,  and  was  ask- 
ing to  have  the  property  in  dispute  given  up  to  him,  and  that 
with  that  undei'standing,  defendant  said  *  *  *  this  in 
law  would  be  equivalent  to  a  demand  and  refusal.  Cooley  on 
Torts,  452. 

The  court  instructs  you,  that  while  no  particular  form  of 
words  is  necessary  in  making  a  demand  for  the  possession  of 
personal  property,  still,  to  constitute  a  valid  demand,  the  lan- 
guage used  must  be  such  as  to  clearly  denote  that  a  demand 
is  then  made  for  the  possession  of  the  property,  and  so  as  to 
leave  no  reasonable  grounds  for  doubt  as  to  what  property  is 
referred  to ;  and  the  demand  must  be  made  by  some   person 


564  TKOVER. 

authorized  to  receive  the  possession,  and  then  and  there  pres- 
ent to  receive  it- 

To  constitute  a  legal  demand  of  jn-operty,  in  this  class  of 
cases,  it  is  not  necessary  for  the  demanding  party  to  make 
use  of  the  word  "demand,"  or  to  specify,  by  name  or  partic- 
ular description,  the  property  demanded;  but  any  language 
which  makes  known  to  the  party  on  whom  the  demand  is 
made  that  the  demandant  desires  the  possession  of  the  prop- 
erty, and  informs  him,  by  reference  or  otlierwise,  what  prop- 
erty he  desires  possession  of,  is  sufficient  to  constitute  a  demand. 
Cooley  on  Torts,  452. 

§   26.     Demand  by  Agent — Ground  of  R  fasal  Must  be  Specified. 

— The  court  instructs  the  jury,  that  a  party  holding  jn-operty, 
which  he  refuses  to  deliver  on  demand,  because  he  doubts  the 
authority  of  the  person  making  the  demand,  must  place  his 
refusal  distinctly  upon  that  ground,  or  that  excuse  will  not 
avail  him  upon  the  trial.  If  the  refusal  to  deliver  is  placed 
upon  any  other  ground  at  the  time,  the  party  cannot,  after  suit 
is  brought,  place  his  refusal  upon  different  grounds,  as  an  ex- 
cuse for  not  delivering  the  property. 

When  a  demand  is  made  by  an  agent,  and  the  person  from 
whom  the  demand  is  made  has  reasonable  grounds  for  doubt- 
ing the  agent's  authority,  he  may  lawfully  refuse  to  comply 
with  the  demand.  The  evidence  of  agency  should  be  such 
as  an  ordinarily  jirudent  man  would  feel  justified  in  acting 
upon,  knowing  that  he  would  be  liable  for  the  value  of  the 
property  if  he  should  deliver  it  to  a  person  not  authorized  to 
receive  it.  Ligalls  vs.  Bulldey^  13  111.,  315;  Kivie  vs.  Dale^ 
14.  111.  App.,  308. 

\See  Be2:)Ieiin.] 


CHAPTER  XLV. 
USUKT. 


SUIT  BY  PAYEE  OF  NOTE. 

Sec.     I.  Interest  forfeited. 

2.  Presumption  from  the  pa5'ment  of  usury. 

3.  Interest  paid  to  be  credited  on  principal. 

4.  Excess  paid  as  commissions,  etc.,  when  not  usurious. 

5.  Attempt  to  evade  the  statute. 

6.  Contract  must  be  proved  as  pleaded. 

SUIT  BY  ASSIGNEE, 

7.  Note  given  for  usury. 

8.  Not  growing-  out  of  antecedent  transactions. 

9.  Bona  fide  holder. 

SUIT  BY  PAYEE  OF  NOTE. 


§  1.  Interest  Forfeited. — The  court  instructs  the  jury,  that 
where  a  piirt}"  contracts  for,  or  receives  a  greater  rate  of  inter- 
est than  is  allowed  by  law,  and  usury  is  pleaded,  he  cannot 
recover  an}'-  interest  whatever  on  the  principal  sum  loaned, 
and  all  payments  made  upon  the  interest  so  agreed  to  be  paid, 
if  any  are  proved,  must  be  allowed  as  payments  upon  the 
]5rincipal. 

§  2.  Presumption  from  the  Payment  of  Usury. — The  court 
furliier  instructs  the  jury,  that  if  they  believe,  from  the  evi- 
dence, under  the  instructions  of  the  court,  that  any  usurious 
interest  has  been  paid  by  the  defendant,  and  accepted  by  the 
plaintiff,  upon  the  transaction  in  question,  then  that  fact  is 
prima  facie  evidence  of  a  usurious  contract  to  pay  such 
usury.  Whether  there  was  a  usurious  contract  or  not  in  this 
case,  is  a  question  of  fact  to  be  determined  by  the  jury,  from 
a  consideration  of  all  the  evidence  in  the  case.  Heinlack  v. 
CraUree,  77  111.,  182. 

(o65) 


506  tJSUKT. 

§  3.  Interest  Paitl  to  be  Creilited  on  Princii)al. — The  court  in- 
structs the  jury,  that  if  tliey  believe,  from  the  evidence,  that 

the  defendant  borrowed  of  the  plaintiff  the  sum  of  § ,  for 

which  he  f^ave  the  note  sued  on  in  this  case,  and  that,  at  the 
time  the  money  was  so  borrowed,  it  was  agreed  by  the  parties 
that  the  defendant  should  pay  for  such  loan,  besides  the  inter- 
est mentioned  in  the  note,  additional  interest  equal  to 

per  cent,  per  annum  {or  the  sum  of  $ ),  then  such  addi- 
tional interest  {or  additional  sum)  made  the  transaction  usu- 
rious; and,  under  the  statute  of  this  state,  forfeits  the  whole  of 
the  interest. 

And  if  you  further  believe,  from  the  evidence,  that  the  de- 
fendant has  paid  any  interest  on  said  note,  then  such  payment 
must  be  credited  as  payment  on  the  principal  sum  loaned,  and 
you  should  find  accordingly. 

If  you  believe,  from  the  evidence,  that  at  or  about  the  time 
the  note  sued  on  in  this  case  was  given,  the  defendant  bor- 
rowed of  the  plaintiff  the  sum  of  (81, -^OO)  for  the  ]^eriod  of 
{tioo)  years,  and  that  in  consideration  thereof,  and  to  secure 
the  payment  of  the  sum  so  borrowed,  the  defendant  executed 
and  delivered  the  note  for  (S'2,000),  bearing  interest  at  the  rate 
of  (eight)  per  cent,  per  annum  fi-om  date,  and  if  you  further 
believe,  from  the  evidence,  that  the  (§100)  included  in  the 
note,  in  excess  of  the  (§1,900)  borrowed,  was  allowed  and 
agreed  to  be  paid  as  interest  on  the  sum  borrowed,  then  the 
transaction  was  a  usurious  loaning  of  money,  and,  under  the 
laws  of  this  state,  the  plaintiff  has  forfeited  the  whole  of  tlie 
interest  accruing  upon  the  note,  and  your  verdict  should  be 
for  the  amount  originally  loaned,  less  all  the  payments  made 
thereon,  whether  of  principal  or  interest,  if  any  such  pay- 
ments are  shown  by  the  evidence.  Harris  vs.  Bi^essler,  119 
111.,  467. 

§  4.  Excess  Paid  as  Commissions,  etc. — If  the  jury  believe, 
from  the  evidence,  that  the  said  A.  B.  was  employed  by  the 
defendant  to  obtain  for  him  a  loan  of  money,  with  the  under- 
standing or  agreement  that  he  w^ould  pay  or  compensate  the 
said  A.  B.  for  his  services  in  obtaining  said  loan,  and  also  tliat, 
at  or  about  the  date  of  the  note  in  question,  the  said  A.  B. 
negotiated  a  loan  from  the  plaintiff  to  the  defcnlant — that 


usuKT.  567 

siicli  loan  was  subsequently  made,  and  tlie  note  in  qnestion  in 
til  is  suit  given  to  secure  the  payment  of  such  loan,  then,  if 
the  jury  further  believe,  from  the  evidence,  that  upon  such 
loan  being  made,  the  defendant  agreed  to  pay  the  said  A.  B, 
the  sum  of  ($100)  for  his  services  in  effecting  such  loan,  and 
that  the  said  sum  of  ($100)  was  not  paid  by  the  defendant, 
but,  by  agreement  of  all  the  parties,  was  included  in  said  note, 
as  a  part  of  the  principal  thereof,  this  would  not  render  the 
transaction  usurious,  and  the  jury  should  find  for  the  plaintiff 
the  full  amount  called  for  by  said  note,  both  principal  and 
interest,  after  ci'editing  thereon  all  payments,  if  any  are  shown 
by  the  evidence  to  have  been  made  upon  the  said  note. 
Philips  vs.  liolerU,  90  111.,  4^2;  Cox  vs.  Life  Ins.  Co.,  113 
111.,  3S2. 

§  5.  Attempts  to  Evade  the  Statute. — The  jury  are  instructed, 
as  a  matter  of  law,  that  every  shift,  device  or  trick  which 
may  be  resorted  to  for  the  purpose  of  evading  tlie  statute 
against  usurious  contracts,  will  bring  the  transaction  within 
the  statute,  as  clearly  as  if  its  provisions  had  been  directly 
and  in  terms  violated;  and  if  tlie  transaction  is,  in  truth  and  in 
fact,  a  loaning  of  money  for  a  payment,  made  or  agreed  to  be 
made,  greater  than  the  interest  on  the  loan  at  the  rate  of 
{eight)  per  cent,  per  annum,  the  transaction  is  usurious. 

And  in  this  case,  if  you  believe,  from  the  evidence,  that  the 
defendant  borrowed  from  the  plaintiff  the  sum  of dol- 
lars, and  paid,  or  agreed  to  pay  therefor,  any  sum  greater,  or 
in  excess  of  the  interest,  at  the  rate  of  {eight)  per  cent,  per 
annum,  on  the  money  borrowed,  this  would  render  the  trans- 
action usurious,  and,  under  the  laws  of  this  state,  would  for- 
feit all  interest  upon  said  loan — and  this  would  be  so,  even 
though  the  parties  called  the  excess  so  paid,  or  agreed  to  be 
paid,  a  present  or  a  bonus  from  the  defendant  to  the  plaintiff, 
or  commissions  paid  to  the  plaintiff"  as  an  inducement  to  him 
to  make  the  loan. 

§  6.  Contract  Must  be  Proved  as  Pleaded. — The  court  in- 
structs the  jury,  that  the  defense  of  usury,  under  our  prac- 
tice, must  be  specially  pleaded,  and  strictly  proved  as  pleaded. 
Under  the  pleadings  in  this  case,  the  defendant,  in  order  to 


568  rsuKT. 

sustain  Lis  defense  of  nsnry,  must  show,  by  a  preponderance 
of   the  evidence,  that   tliu  contract  of   loaning  was,  etc.,  and 

that  he  paid  {or  agreed  to  pay)  the  sum  of  S ,  over  and 

above  the  interest  called  for  by  the  notes,  for  the  purpose  of 
giving  plaintiff  more  tban  {evjit)  per  cent,  interest  on  the 
money  loaned.  And  if  the  jury  believe,  from  the  evidence 
that  the  agreement  was  other  than  that  above  stated,  or  that 
any  other  sum  than  tliat  above  stated  was  paid  {or  agreed  to 
he  paid)  as  usury,  then  the  defense  of  usury  is  not  made  out, 
and  the  jury  should  find  for  the  plaintiff  for  the  amount  due 
u])on  the  note,  including  interest.  Frank  vs.  Morris^  57  III.? 
138. 

SUIT    BY    ASSIGNEE,    ETC. 

§  7.  Note  Given  for  Usuiy. — The  jury  are  instructed,  that 
if  they  believe,  from  the  evidence,  that  the  only  consideration 
for  the  note  sued  on  was  illegal  or  usurious  interest,  agreed 
to  be  paid  by  the  defendant,  as  alleged  in  his  plea,  then  the 
jury  should  hud  the  issues  for  the  defendant;  provided,  they 
further  believe,  from  the  evidence,  that  the  note  was  assigned 
by  the  payee  after  it  became  due,  or  that  the  plaintiff  had 
notice  of  such  usurious  transaction  at  the  time  the  note  was  so 
assigned  to  him. 

A  note  given  for  usuiious  interest  is  given  for  an  illegal 
consideration,  and  is  not  binding  upon  the  maker,  unless  it  is 
in  the  hands  of  an  innocent  ])urchaser,  who  takes  it  in  the 
regular  course  of  business  before  due,  for  value,  and  without 
notice  of  such  consideration;  and  if  you  believe,  from  the  evi- 
dence, that  the  note  in  question,  in  this  case,  was  given  for 
usury,  and  that  tlie  same  was  assigned  by  the  payee  thereof 
after  it  became  due,  or  that  the  plaintiff  had  notice  of  such 
illegal  consideration  at  the  time  he  purchased  the  note,  then 
you  should  find  for  the  defendant. 

§   8.     Note  Growing  out  of  Aiitecodont  Usurious  Transactions. — 

The  jury  are  instructed,  that  the  defendant  in  one  of  his  pleas, 
to  which  your  attention  has  been  called,  has  set  up  the  defense 
of  usury  ;  an  i,  regarding  that  defense,  the  court  instructs  you, 
as  a  matter  of  law,  that  if  promissory  notes  are  once  tainted 


TJSUET.  5C9 

witli  usury,  tlic  renewal  of  them,  if  tlie  usury  is  added  into 
the  new  notes,  will  not  free  the  transaction  from  usury.  The 
rule  in  such  cases  is,  that  the  defense  of  usury  may  be  in- 
terposed so  long  as  any  portion  of  the  original  debt  remains 
unpaid  in  the  hands  of  the  original  payee,  or  of  any  assignee 
thereof,  if  the  note  is  assigned  after  maturity,  or  with  notice 
of  such  defense;  and  in  this  case,  if  the  jury  believe,  from 
the  evidence,  that  the  defendant  has  proved  all  the  allegations 
of  his  plea  of  usury,  as  therein  stated,  by  a  preponderance  of 
the  evidence,  then  ujion  the  question  of  usury  the  jury  should 
find  in  favor  of  the  defendant.  2  Parsons  onlSTotcs  and  Bills, 
420;  Gray  vs.  Brown,  22  Ala.,  262;  Bridge  x^.  Huhhard,  15 
Mass.,  96;  Wall'er  vs.  Ba7il\  etc.,  3  How.,  62;  Powell  vs. 
Waters,  8  Cowan,  685;   House  vs.  Davis,  60  111.,  362. 

If  you  be'ieve,  from  the  evidence,  that  the  note  in  question 
was  given  in  consideration  of  a  usurious  loaning  of  money,  as 
stated  and  set  forth  in  the  defendant's  plea,  and  also  that  the 
note  was  assigned  or  indorsed  by  the  payee  thereof  to  the 
plaintiff  after  it  became  due,  or  that  the  plaintiff  had  notice, 
when  the  note  was  assigned  to  him,  that  it  was  given  upon 
such  usurious  loaning  of  money,  then  he  can  only  recover  in 
this  case  the  amount  of  the  money  actually  loaned,  less  all 
payments  made  by  the  defendant  thereon,  whether  of  princi- 
pal or  interest,  if  any  such  yiayments  are  proved,  and  you 
should  find  your  verdict  accordingly. 

§  9.  Bona  Fide  Holder. — Although  the  jury  may  believe, 
from  the  evidence,  that  the  note  in  question  was  given  upon 
the  usurious  loaning  of  money,  as  stated  and  set  forth  in  the 
defendant's  plea  filed  in  this  case,  still,  if  the  jury  further  be- 
lieve, from  the  evidence,  that  the  note  was  assigned  to  the 
plaintiff  before  it  became  due,  for  a  valuable  consideration, 
and  that  the  plaintiff  had  no  notice  of  such  usurious  transac- 
tion at  the  time  of  the  assignment  to  him,  then  he  is  entitled 
to  recover  in  this  suit  the  face  of  said  note,  princij^al  and  in- 
terest, less  the  ].ayments  indorsed  thereon,  and  the  jury  should 
find  their  verdict  accordingly. 


CHAPTER  XLVI. 
WAKRANTY. 


Sec.     1.  What  constitutes  a  warranty. 

2.  Intention  not  material. 

3.  Wliat  does  not  amount  to  a  warranty. 

4.  Mere  praise  or  boasting  does  not  amount  to  a  warranty. 

5.  Warranty  must  form  a  part  of  the  contract. 

6.  Warranty  after  the  sale. 

7.  Sale  by  sample — Implied  warranty. 

8.  Purchaser  has  reasonable  opportunity  to  inspect. 

9.  Sale,  when  not  by  sample. 

10.  Warranted  equal  to  sample. 

SALES  FOE  FUTURE  DELIVERY. 

11.  Implied  warranty  of  kind  and  quality. 

12.  Implied  warranty. 

13.  Implied  warranty  of  manufacturer. 

14.  Purchaser  may  return  propTty,  or  keep  it  and  recoup,  etc. 

15.  Machine  on  trial  —Should  give  notice  in  reasonable  time. 

16.  To  be  returned  in  a  reasonable  time. 

17.  When  no  implied  warranty. 

18.  Defense — Fraud  and  breach  of  warranty. 

19.  War  anty  of  the  soundness  of  a  horse. 

20.  Defect  must  exist  at  the  time  of  warranty. 

21.  Visible  defects  not  warranted  against. 

22.  Artifice  to  prevent  examination  by  purchaser. 
28.  Burden  of  proof. 

24.     Measure  of  damages. 

§  1.  AVhat  Constitutes  Warranty. — Tlie  court  instructs  tlie 
jury,  that  to  constitute  a  warranty  it  is  not  necessary  that  the 
word  "warranty"  or  any  particular  word  should  be  used  in 
the  contract;  but  if  the  jury  believe,  from  the  evidence,  that 
the  defendant  made  use  of  the  expression,  etc.,  and  that  under 
the  circumstances  the  plaintiff  had  reasonable  ground  to  6U]> 
pose  that  a  warranty  was  intended  by  the  defendant,  and  tliat 
he  did  so  suppose,  and  in  making  the  purchase  relied  upon 
such  supposed  warranty,  then  tlie  jury  should  find  that  there 

(570)" 


WAREANTT.  571 

was  a  warranty  in  fact.  Benj,  on  Sales,  §  013;  Thome  vs. 
Mc  VeagJi,  75  111.,  81;  1  Pars,  on  Cont.,  462, 403;  lid.  vs.  Stout, 
17  Wal.,  657;  Simar  vs.  Canadmj,  53  K  Y.,  298;  2  Kent's 
Com.,  485;  Moore's  Justice,  §  120. 

JN^o  particular  words  or  form  of  expression  is  necessary  to 
create  a  warranty,  nor  need  the  word  warranty  be  nsed.  If 
the  representation  is  positive  and  relates  to  a  matter  of  fact, 
and  not  to  a  matter  of  opinion,  and  the  other  party  receives 
the  statement  as  true,  and  relies  npon  it  in  making  the  trade, 
snch  representation  will  constitute  a  warranty.  Rohinson  vs. 
Harvey.,  82  111.,  58;  Smithers  vs.  Biroher,  2  Mo.  A  pp.,  99. 

To  constitute  an  exp^ress  warranty,  the  word  warrant  need 
not  be  used,  nor  is  any  precise  form  of  expression  necessary  to 
create  a  warranty  ;  any  affirmation  of  the  quality  of  an  article 
or  thing  sold  made  by  the  seller,  at  the  time  of  the  sale,  for 
the  purpose  of  assuring  the  buyer  of  the  truth  of  the  fact 
affirmed,  and  to  induce  him  to  make  the  purchase,  if  so  re- 
ceived and  relied  upon  by  the  purchaser,  will  amount  to  an 
exj^ress  warranty.  Warder  vs.  Bowen,  17  N.  W.  Hep,  943 ; 
Patrick  vs.  Leach,  8  Neb.,  531. 

And  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
the  note  sued  on  was  given  by  the  defendant  towards  the  pur- 
chase price  of,  etc.,  sold  to  him  by  the  plaintiff,  and  that  upon 
such  sale  the  plaintiff  represented  to  the  defendant  that  the 
said  {jnachlnc,  lohen  jproperly  used,  was  capable,  etc.,)  and  that 
the  said  defendant,  relying  upon  such  representations,  pur- 
cliased  the  said  {^machine)  upon  the  faith  of  the  truth  thereof, 
this,  in  law,  would  amount  to  a  warranty  that  the  said  {machine) 
was,  etc. 

§  2.  Intention  not  Material. — The  jury  are  instructed,  that 
to  constitute  a  warranty  it  is  not  necessary  to  show  that  tlie 
seller  intended  to  cheat  or  deceive  the  purchaser  in  the  sale 
of  the  property.  It  is  wholly  imm.aterial  whether  or  not  the 
seller  believed  his  representations  to  be  true  at  the  time; 
the  purchaser's  right  to  recover  for  a  breach  of  warranty,  in 
such  cases,  does  not  depend  upon  the  seller's  intention  to  de- 
ceive, but  upon  the  intention  to  warrant,  or  upon  the  fact  of 
a  warranty. 

In  order  to  constitute  a  warranty  upon  a  sale,  it   is  not 


0  (  Ji  WARRANTY. 

necessary  that  tlie  representation  should  have  been  intended 
by  the  vendor  as  a  warranty.  If  the  representation  is  clear 
and  positive  as  to  the  kind  or  quality  of  the  article,  and  not 
a  mere  expression  of  opinion,  and  the  purchaser  understands 
it  as  a  warranty,  and,  relying  upon  it,  purchases  the  property, 
then  the  vendor  cannot  escape  liability  by  claiming  that  he 
did  not  intend  what  his  language  declared  or  fairly  implied. 
Hawl'ins  vs.  Peinberton^  51  N.  Y.,  198;  Sjxirling  vs.  Marks, 
86  III,  125. 

§  3.  AVhat  Does  not  Amount  to  a  "Warranty. — The  jury  are 
instructed,  that  while  it  is  true,  if  the  seller  of  personal  prop- 
erty asserts,  as  a  fact,  anything  regarding  its  qualities,  and 
concerning  which  the  buyer  is  ignorant,  and  the  purchaser 
relies  upon  the  statement  in  making  the  purcliase,  the  asser- 
tion will  amount  to  a  warranty  of  the  fact  asserted ;  still,  it  is 
also  true,  that  if  the  vend  )r  merely  states  an  opinion,  or  gives 
his  judgment  upon  a  matter  of  which  he  has  no  special  knowl- 
edge, and  upon  which  the  buyer  also  might  reasonably  be  ex- 
pected to  have  an  opinion  and  to  exercise  judgment,  this  is  not 
a  warranty.  Benj.  on  Sales,  §  5G7;  Wdlmaii  vs.  Wilcox^  30 
Me.,  170;  Chapman  vs.  31urch,  19  John.,  290;  Polhemiis  vs. 
Heiman,  45  Cal.,  573;  Moore's  Justice,  §  121. 

The  mere  expression  of  an  opinion  or  re])resentations  con- 
cerning the  qualities  or  cajmbilities  of  an  article  sold  by  the 
vendor,  do  not,  of  themselves,  constitute  a  warranty;  to  amount 
to  a  warranty  the  language  used  must  form  a  part  of  the  con- 
tract of  sale,  and  be  such  as  to  import  oi  amount  to  a  promise 
that  the  article  in  question  does  possess  the  qualities  and  capa- 
bilities mentioned  in  the  alleged  promise  or  contract,  and  the 
expressions  or  representations  must  be  relied  upon  by  the 
buyer,  as  a  wai-ranty,  in  making  the  purchase.  Worth  vs.  Mc- 
Connell,  42  Mich.,  473. 

To  constitute  a  warranty  there  must  not  only  be  an  affirma- 
tion by  the  seller  respecting  the  quality  of  the  article  sold, 
but  tlie  affirmation  must  be  made  with  a  view  of  assurinff  the 
buyer  of  the  truth  of  the  fact  asserted,  and  it  must  be  re- 
ceived and  relied  upon  by  the  buyer  in  making  the  purchase. 

While,  to  constitute  a  warranty,  the  term  warrant  need  not 
be  used,  nor   any  precise  foirn  of  expression  employed,  still, 


WAiiEAJJTY.  5  <  O 

to  constitute  a  binding  warranty,  there  must  be  an  affirmation 
as  to  the  quality  or  condition  of  the  thin_<j^  sold,  made  by  the 
sel'er,  at  or  before  the  sale,  for  the  purpose  of  assui'ing-  the 
buyer  of  the  truth  of  the  fact  asserted,  and  of  inducing  him 
to  make  the  i)urchase.  and  it  must  be  so  received  and  relied 
upon  by  tlie  pureh.iser.  Banj.  on  Sales,  §  613;  Ilatolchis  vs. 
Berry,  5  Gilm.,  36;  Bishop  vs.  Small,  63  Me.,  12;  Byrne  vs,. 
Jansen,  50  Cal.,  624;  Humphreys  vs.  Comline,  8  Blackf.,5()8; 
Ilahn  vs.  Voolittle,  IS  Wis.,  197;  Ilawhhis  vs.  Peinherton^ 
6l*N.  Y.,  198. 

§  4.  Mere  Praise  or  Boasthig  not  a  Warranty. — The  jury  are 
instructed,  that  mere  praise  or  boasting  indulged  in  by  the 
owner  of  })ersonal  property,  when  offering  it  for  sale,  does  not 
amount  to  a  warranty  of  its  quality  or  condition,  if  such  praise 
or  boastful  remarks  are  but  expressions  of  opinion  or  judg- 
ment concerning  the  property;  provided,  the  purchaser  has 
an  opportunity  to  examine  the  property  at  the  time,  and  does 
or  does  not  do  so,  and  w-here  no  artilice  is  used  to  prevent  him 
making  an  examination.     Byrne  vs.  Jaiisen,  50  Cal.,  624. 

When  parties  are  negotiating  a  trade  for  property  which 
there  is  an  opj)ortunity  for  examining,  the  owner  of  the  prop- 
erty has  a  right  to  extol  the  value  or  desirable  qualities  of 
his  property  to  the  highest  point  which  the  credulity  of  the 
purchaser  will  bear,  if  he  confines  himself  to  mere  expression 
of  opinion  or  judgment.  Such  boastful  assertions  or  highly 
exaggerated  descriptions  do  not  amount  to  a  warranty;  in  such 
cases  tlie  parties  are  upon  equal  ground,  and  the  purchaser 
must  exercise  his  own  judgment  and  abide  the  consequences. 

§  5.  Warranty  Must  Form  Part  of  the  Contract. — The  court 
instructs  the  jury,  that  to  constitute  a  valid  and  binding  war- 
ranty, the  agreement  to  warrant  must  enter  into  and  form  a 
part  of  the  contract  of  sale.  If  the  agreement  to  warrant 
the  article  is  not  made  at  the  time  the  trade  is  consummated 
or  closed  up,  then  it  must  be  made  during  the  negotiation 
between  the  parties,  and  so  shortly  before  the  sale  and  under 
such  circumstances  that  the  purchaser  was  reasonably  justified 
in  regarding  it  as  continuing  until  the  bargain  was  finished. 
and  as  forming  one  of  the  terms  of  the  contract  of  sale.     Benj. 


574:  •  WARKANTr. 

on  Sales,  §  611;  Vuic3?it  vs.  Lelcmd,  100  Mass.,  432;  WiJmot 
vs.  Ilicrd,  11  Wead.,  584;  Cougar  vs.  Chamherlain,  14  Wis., 
258;  Summers  y^.Yauglm^  35  lud.,  323;  Brya)it  w&.  Crosby^ 
40  Me.,  9. 

§  6.  Warranty  after  the  Sale. — Tliat  a  warranty  made  after 
tlie  contract  of  sale  is  concluded,  if  proved,  is  not  binding,  un- 
less it  is  made  as  a  new  and  separate  contract,  and  upon  some 
new  consideration  passing  between  the  parties;  and  though 
the  jury  may  believe,  that  upon  the  occasion  in  question,  ttie 
plaintiff  said  to  the  defendant  {the  horse  is  sound  and  true, 
and  all  right),  still,  if  the  jury  further  believe,  from  the  evi- 
dence, that  this  was  not  said  until  after  the  trade  was  com- 
pleted, this  alone  would  not  constitute  a  binding  warranty. 
Toioell  vs.  Gatev}ood,  2  Scam.,  22. 

In  order  to  make  out  the  defense  of  warranty,  and  a  breach 
thereof,  it  must  appear,  from  the  evidence,  that  the  represen- 
tations relied  upon,  if  any  were  made,  were  made  before  the 
defendant  accepted  the  proj  crty  in  question,  under  the  con- 
tract of  sale;  and  unless  the  jury  believe,  from  the  evidence, 
that  the  alleged  warranty  was  made  before  the  contract  of  sale 
was  completed  and  the  property  delivered  to  the  defendant, 
and  accepted  by  him,  as  in  compliance  with  the  contract,  then 
the  jury  should  hnd  for  tlie  plaintiff  upon  the  question  of 
warranty;  provided,  you  find,  from  the  evidence,  that  the 
property  was  so  delivered  and  accepted  by  the  defendant. 

In  order  to  constitute  a  warranty  there  must  not  only  be  an 
affirmation  by  the  seller,  respecting  the  quality  or  condition 
of  the  article  sold,  but  it  must  be  made  with  the  view  of 
assuring  the  buyer  of  the  truth  of  the  fact  asserted,  and  must 
be  relied  upon  by  him,  and  be  one  of  the  inducements  to  him 
to  purchase  the  goods. 

§  7.  Sale  by  Sample — Implied  Warranty. — The  jury  are  in- 
structed, that  when  goods  are  offered  for  sale  under  such  cir- 
cumstances that  there  is  no  reasonable  opportunity  to  inspect 
them  by  the  purchaser,  and  the  vendor  exhibits  what  he  rep- 
resents to  be  a  sample  of  the  goods  so  offered,  and  a  sale  is 
thereby  effected,  tlien  the  vendor  impliedly  warrants  the  qual- 
ity of  the  bulk  of  the  goods  so  sold  to  be  equal  to  that  of  the 


WARKANTY.  575 

sample.  Bonj.  on  Sales,  §  648;  Beirne  vs.  Dord^  1  SoldeDj 
95;  S.  C,  2  Sandf.  Sup.  Ct.,  89;  Bradford  vs.  Manbij^V6 
Mass.,  139;  Farmer  vs.  Gray,  20  ^".  W.  Rep.,  276. 

If  the  jury  believe,  from  the  e\'idence,  that  there  was  a 
contract  between  the  parties,  by  which  it  was  a^^reed  that  the 

plaintiff  should  sell  and  deliver cases  of,  etc.,  and  that 

the  plaintitf  had  wnth  him  what  he  represented  as  a  sample  of 
the  goods  to  be  delivered,  then  there  was  an  implied  warranty 
that  the  bulk  of  the  articles  so  contracted  to  be  delivered 
sh'ould  be  equal  in  value  to  the  sample  so  shown ;  and  if  the 
goods  forwarded  to  the  defendant  were  not  equal  in  quality 
to  the  sample,  he  was  under  no  obligation  to  keep  them. 

§   8.     Purchaser  has  Reasonable  Opportunity  to  Inspect,  etc. — 

That  it  is  an  implied  condition  in  all  sales  by  sample,  that  the 
buyer  shall  have  a  fair  opportunity  of  examining  the  bulk  of 
the  articles  sold,  and  of  comparing  them  with  the  sample  be- 
fore determining  whether  he  will  accept  them  or  not.  Benj. 
on  Sales,  §  594,  6-48;  Lorymer  vs.  Smithy  1  B.  &  C,  1. 

§  9.  Sale,  AVlienNot  by  Sample. — Although  the  jwvy  may  be- 
lieve, from  the  evidence,  tliat,  at  the  time  of  the  alleged  sale, 
the  plaintiff  had  with  him,  and  showed  to  the  defendant,  what 
he  represented  to  be  a  fair  sample  of  the  goods  in  question, 
still,  if  the  jury  further  believe,  from  the  evidence,  that  the 
defendant  had  an  opportunity  to  inspect  the  goods  in  question, 
«,nd  did  inspect  them,  as  far  as  lie  desired  to  do  so,  and  refused 
to  purchase  by  the  sample  shown  him,  then  there  was  no  im- 
plied contract  on  the  part  of  the  plaintiff  that  the  goods  sold 
should  equal  the  sample  in  quality  or  value. 

§  10.  Warranted  Equal  to  Sample. — If  the  Jury  believe,  from 
the  evidence,  that  the  note  in  suit  in  this  case  w^as  given  by 
the  defendant  for  a  part  of  the  purchase  price  of  {a  macfdne), 
sold  by  the  plaintiff  to  the  defendant,  then,  if  the  jury  further 
believe,  from  the  evidence,  that  the  plaintiff,  as  a  part  of  the 
contract  of  sale,  warranted  ifhe  machine)  so  sold  to  be  similar 
Inmake  and  equally  as  good  as  a  sample  (maGhine)  then  shown  to 
the  defendant,  if  you  find,  from  the  evidence,  that  such  sample 
was  shown,  and  if  you  also  find,  from  the  evidence,  that  the 


676  TTAEEAirrT. 

{machine)  sold  was  not  Riinilar  in  construction  or  equal  Iv  as 
good  as  the  sample,  and  that  the  defendant  is  damaged  by 
reason  tliereof,  then  the  jury  should  deduct  the  amount  of 
such  damage  from  the  amount  due  on  the  note,  and  render  a 
verdict  in  favor  of  the  plaintiff  for  the  balance;  provided, 
you  find,  from  the  evidence,  that  such  damage  is  less  than  the 
amount  due  on  the  note;  and  if  you  find  the  amount  due  on 
the  note  to  be  less  than  the  amount  of  such  damage,  then  you 
should  deduct  the  amount  due  on  the  note  from  the  amount 
of  such  damage,  and  return  a  verdict  in  favor  of  the  defend- 
ant for  the  balance  so  found. 

SALES  FOR  FUTL'KE  DELIVERY. 

§  11.  Implied  AVarranty  of  Kind  and  Quality. — The  Jury  are 
instructed,  that  in  a  sale  of  goods  for  future  delivery  by  name 
or  description  (as,  for  instance,  wheat  or  No.  2  corn),  if  the 
property  is  not  inspected  by  the  buyer,  then  tliei'e  is  an 
implied  warranty  that  the  goods  shall  answer  the  description 
given,  and  be  salable  and  merchantable;  and  if  pro])erty  is 
tendered  under  such  a  contract,  which  does  not  answer  such 
implied  warranty,  the  jmrchaser  is  not  bound  to  accept  it. 
Benj.  on  Sales,  §  G56;  Merriam  \Q.Jfield,  24  Wis.,  640;  3Ic- 
Clung  vs.  Kelley,  21  la.,  50S. 

The  law  is,  that  under  a  contract  to  deliver  a  certain  number 
of  bushels  of  wdieat,  there  is  an  implied  warranty  that  the 
wheat  is  to  be  of  a  fair,  merchantable  quality;  provided,  the 
buyer  has  had  no  opportunity  to  inspect  it;  and  if  the  jury 
believe,  from  the  evidence,  that  the  wheat  which  plaintiff 
Oifei-ed  to  deliver  to  defendant  was  not  of  a  fair,  merchantable 
quality,  then  the  defendant  was  under  no  obligation  to  accept 
the  wheat,  even  though  it  was  tendered.  Moore's  Justice, 
§  123. 

§  12.  Implied  "Warranty. — The  court  instructs  the  jury,  that 
in  the  case  of  a  sale  of  personal  pro]:)erty,  where  there  is  no 
oi)])ortunity  for  the  purchaser  to  inspect  it,  there  is  an  implied 
warranty  that  the  property  is  of  a  fair,  merchantable  quality, 
in  good  condition,  and  fit  for  the  use  to  which  it  is  usually 
applied.  Merriam  vs.  Fleld^  39  "Wis.,  578;  Van  Wyck  vs. 
Allen,  69  N.  Y.,  61. 


WARRANTY.  677 

Tliougli  tlie  jury  may  believe,  from  the  evidence,  tliat  tlio 
parties  entered  into  a  contract  by  which  the  ])laintilf  a<>;reed  to 
deliver,  and  the  defendant  agreed  to  take  brick,  as  alleged  in 
the  declaration  in  this  case,  still,  if  the  jury  further  believe, 
from  the  evidence,  that,  as  a  part  of  the  same  contract,  plaint- 
iff warranted  and  agreed  that  the  brick  so  to  be  delivered 
should  be  the  same  in  quality,  or  as  good  as  those  used  in  the 
construction  of,  etc.;  and  if  the  jury  further  believe,  from  the 
evidence,  that  the  brick  claimed  to  have  been  tendered  by  the 
plaintiff  were  not  as  good  in  quality  as  those  used  in  the  con. 
struction  of,  etc.,  then  the  defendant  was  not  bound  to  accept 
nor  pay  for  the  bricks  so  tendered. 

§  13.  Implied  Warranty  of  Manufacturer. — The  court  instructs 
the  jury,  that  every  manufacturer  of  machinery  impliedly 
contracts  with  the  person  for  whom  an  article  of  machinery  is 
made,  in  the  absence  of  a  special  agreement  to  the  contrary, 
that  the  article  manufactured  shall  be  reasonably  fit  for  the 
purpose  for  which  it  is  made,  and  if  the  article  is  not  so  fit, 
then  the  manufacturer  is  liable  for  the  damage  occasioned  by 
such  nntitness. 

Where  a  manufacturer  sells  a  commodity,  by  a  well  known 
market  description,  and  the  commodity  is  not  present  at  the 
time  and  place  of  trade,  and  is  not  seen  or  examined  by  the 
purchaser,  the  law  will  imply  a  warranty,  on  the  part  of  the 
seller,  that  the  commodity  is  of  a  fair,  merchantable  quality, 
corresponding  to  the  description  under  which  it  is  sold.  And 
the  same  rule  applies  where  the  seller  holds  himself  out  as 
the  manufacturer  of  the  commodity  sold,  or  sells  under  cir- 
cumstances reasonably  warranting  the  purchaser  in  believing 
him  to  be  selling  as  a  manufacturer.  Chi.  P'lc'g  c&  Prov. 
Go.  vs.  Tilton^  87  111.,  547;  Robinson  Machine  Worlds  vs. 
Chandler^  56  Ind.,  575;  Thomas  vs.  Slinpsori,  80  N.  C,  4. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
purchased  the  machine  in  question  of  the  plaintiff,  and  that 
the  plaintiff  was  the  manufacturer  of  said  machine,  or  repre- 
sented himself  as  such  manufacturer,  and  that  the  defendant 
did  not  have  a  reasonable  opportunity  to  inspect  the  machine 
before  purchasing  it,  then  the  law  implies  a  warranty,  on  the 
part  of  the  plaintiff,  that  the  machine  was  one  reasonably  fit 
37 


578  WARRAKTT. 

and  suitable  for  the  purpose  for  which  it  was  sold  to  the  de- 
fendant. And  if  the  jury  f urtlier  believe,  from  the  evidence, 
that  the  machine,  at  the  time  it  was  sold,  was  not  reasonably 
fit  and  suitable  for  such  purpose,  and  that  the  defendant,  by 
reason  thereof,  has  sustained  damage  to  an  amount  equal  to 
or  greater  than  the  amount  of  the  note  sued  on,  then  the  jury 
should  tind  for  the  defendant;  provided,  you  further  believe, 
from  the  evidence,  that  the  note  in  question  was  given  for  a 
part  of  the  purchase  price  of  the  machine.  Benj.  on  Sales, 
§  657;  Pars,  on  Cont.,  467;  3lann  vs.  Enerston,  32  Ind.,  355; 
Bird  vs.  Mayer,  8  Wis.,  362. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  sold 
the  machine  in  question  to  the  defendant,  and  that  at  the  time 
of  such  sale  the  plaintiff  made  a  verbal  warranty  that,  etc.,  and 

agreed  to  take  back  the  machine,  at  any  time  within 

months  from  the  date  of  such  sale,  and  return  the  money  paid 
therefor,  in  case  the  warranty  should  fail,  and  if  the  jury  fur- 
ther believe,  from  the  evidence,  that  said  machine  did  not 
meet  the  requirements  of  such  warranty,  and  that  the  defend- 
ant, within  the  said months,  notified  the  plaintiff'  of  such 

failure,  and  to  come  and  remedy  the  defect  or  take  the  ma- 
chine away,  and  that  the  plaintiff  did  neither,  then  the  prop- 
erty still  belongs  to  the  plaintiff,  and  he  cannot  recover  in  this 
suit  for  the  price  of  the  machine. 

§  14.  Purchaser  may  Return  the  Property  or  Recoup,  etc. — The 
rule  of  law  is,  in  the  case  of  a  sale  of  personal  property  with 
a  warranty,  either  expressed  or  implied,  in  the  absence  of  fraud 
on  the  part  of  the  seller,  that  if  the  thing  purchased  does  not 
answer  the  terms  of  the  warranty  the  purchaser  may  return, 
or  offer  to  return,  the  lu-operty  within  a  reasonable  time,  and 
thereby  defeat  the  right  on  the  part  of  the  vendor  to  recover 
any  part  of  the  ])urchase  money;  or  the  purchaser  may  keep 
the  property,  and,  when  sued  for  the  price,  may  set  up  the 
breach  of  warranty  in  recou])ment  of  the  plaintiff's  damages. 
But,  in  such  case,  the  vendor  may  recover  the  value  of  the 
thing  sold,  if  it  has  any  value  for  any  purpose,  notwithstand- 
ing its  unfitness  for  the  use  for  which  it  was  sold.  Wander 
and  another  vs.  Fisher,  48  Wis.,  338. 


WAEKANTT.  579 

§   15.     Macliine  on  Trial — Should  Give  Notice  in  "Reasonable  Time. 

— Where  a  party  sells  {a  reaping/  and  moivhig  machijie),  with 
an  agreement,  at  the  time,  that  if  it  should  not  prove  to  be  a 
good  machine,  he  will  take  it  back  or  make  it  all  right,  he  is 
under  no  obligation  to  take  back  the  machine  or  make  it  all 
right,  unless  called  upon  to  do  so  within  a  reasonable  time 
after  the  sale. 

§  16.  To  be  Returned  in  Reasonable  Time. — If  the  jury  be- 
lieve, from  the  evidence,  that  the  agreement  between  the  par- 
ties was  that  defendant  was  not  to  keep  the  machine  unless  it 
suited  him,  and  that  he  was  to  have  the  privilege  of  returning 
it  if  it  displeased  him,  then,  if  he  was  not  satisfied  with  the 
machine,  he  was  bound  to  return  it  within  a  reasonable  time, 
and  if  he  did  not  do  so,  lie  Avill  be  held  to  have  elected  to 
keep  the  machine,  and  pay  for  it  at  the  agreed  price. 

§  17.  AVhen  no  Implied  Warranty. — The  court  instructs  tlie 
jury,  that  where  a  person  buys  an  article  of  personal  property, 
and,  before  purchasing  it,  inspects  the  article,  or  has  a  reasonable 
opportunity  to  inspect  it,  and  fails  to  do  so,  there  is  no  implied 
warranty,  on  the  part  of  the  seller,  as  to  the  quality  or  value 
of  the  article  purchased,  so  far  as  these  might  reasonably 
have  been  discovered  by  such  inspection. 

Where  a  person  purchases  an  article  of  per.-onal  property, 
and  at  the  time  of  the  purchase  the  article  is  present  and  sub- 
ject to  reasonable  inspection  and  examination  of  the  buyer,  as 
to  its  quality  or  value,  then  the  purchaser  takes  the  property 
at  his  own  risk,  so  far  as  regards  its  workmanship  and  ma- 
terial, unless  the  seller  expressly  warrants  the  character  of  the 
same,  or  there  is  some  concealed  defect  or  fraud  practiced. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
purchased  of  the  plaintiff  the  apples  in  question,  at  an  agreed 
price,  and  that,  at  the  time  of  such  purchase,  the  defendant 
actually  inspected  the  apples,  and  knew  their  condition,  then 
the  defendant  is  liable  to  the  plaintiff  for  the  full  price  so 
agreed  upon,  whatever  may  have  been  the  actual  condition  of 
the  apples  at  the  time  of  the  purchase. 

If  you  believe,  from  the  evidence,  that  the  defendant  pur- 
chased of   the  plaintiff  the  apples  in  question,  at  an  agreed 


580  WAEEANTT. 

price,  and,  at  the  time  of  such  pm-cliase,  actually  inspected  a 
part  of  the  apples,  and  might  have  inspected  the  remainder 
if  he  had  wished  to  do  so,  and  that  the  bulk  of  the  apples 
were  of  like  quality  with  those  which  he  did  inspect,  then  the 
defendant  is  liable  to  the  plaintiff  for  the  full  price  so  agreed 
upon,  whatever  may  have  been  the  actual  condition  of  the 
apples  at  the  time  of  the  purchase. 

§  18.  Defense — Fraud  and  Breach  of  Warranty. — The  court 
instructs  the  jury,  that  where  a  party  purchases  an  article  of 
personal  property,  and  at  the  time  of  the  purchase  the  article 
is  present  and  subject  to  his  reasonable  examination,  as  to  its 
construction,  quality  and  value,  then  the  purchaser  takes  the 
property  at  his  own  risk,  so  far  as  regards  construction,  work- 
manship, material  and  value,  unless  the  seller  expressly  war- 
rants the  character  of  the  article  in  respect  to  these  particu- 
lars, or  unless  he  practices  some  trick,  fraud  or  deceit  upon 
the  purchaser. 

§  19.  AVarranty  of  the  Soundness  of  a  Horse. — If  the  jury 
believe,  from  the  evidence,  that  ihe  plaintiff  sold  the  horse  in 
question  to  the  defendant,  and  that  just  before  or  at  the  time 
of  such  sale,  the  plaintiff  made  any  declaration  or  affirmation 
to  the  defendant  regarding  the  condition  of  the  horse,  to  the 
effect  ("  The  horse  is  perfectly  sound,  well  broke  and  true  to 
work"),  for  the  purpose  of  assuring  the  defendant  of  the 
truth  of  that  statement,  and  for  the  purpose  of  inducing  him 
to  buy  the  horse,  and  if  the  jury  further  believe,  from  the  evi- 
dence, that  the  defendant  did  believe  such  statement  to  be  true, 
and,  relying  upon  the  truth  thereof,  bought  the  horse  in  ques- 
tion, this,  in  law,  would  constitute  a  warranty  ("  that  the  horse 
was  perfectly  sound,  well  broke  and  true  to  work");  and  if 
the  jury  further  believe,  from  the  evidence,  that  such  state- 
ment was  not  true  at  the  time,  but,  on  the  contrary,  that  said 
horse  was  unsound  or  not  well  broken,  etc.,  and  that  by  reason 
thereof  the  defendant  has  been  damaged,  this  would  constitute 
a  breach  of  the  warranty,  upon  which  the  plaintiff  would  be 
liable  for  the  amount  of  such  damages.  Van  Horsen  vs. 
Cameron^  54  Mich.,  609. 

If  you  believe,  from  the  evidence,  that  during  the  negotia- 


■WAKKANTT.  581 

tlon  between  the  parties  which  led  to  the  trade  in  question, 
the  plaintiff  said  to  the  defendant  ("The  horse  is  sound  and 
true,  and  I  would  not  be  afraid  to  warrant  him,  but  you  know 
my  warranty  would  not  amount  to  anything"),  and  did  not 
afterwards  take  back  or  qualify  this  language,  this  would 
amount  to  a  binding  warranty  that  the  horse  was  sound  and 
true  at  the  time;  provided,  the  defendant  relied  upon  the 
truth  of  such  statement,  and  purchased  on  the  strength  of  it. 
Cook  vs.  Mosley,  13  Wend.,  277. 

If  the  jury  believe,  from  tlie  evidence,  that  just  before  and 
at  the  time,  etc.,  the  plaintiff  said  to  the  defendant,  I  am  no 
judge,  etc.,  and  the  defendant  replied,  etc.,  this  would  amount 
to  a  warranty  that  the  horse's  eyes  were  sound,  provided  the 
jury  further  believe,  from  the  evidence,  that  the  defendant 
intended  to  convey  the  idea  that  the  horse  was  sound  and  that 
the  plaintiff  so  understood  him  and  relied  upon  that  declara- 
tion in  making  the  purchase.     Patrick  vs.  Leach,  8  Keb.,  530. 

§  20.  Defect  Must  Exist  at  Time  of  Warranty. — That  a  war- 
ranty made  at  the  time  of  a  sale  of  a  horse,  that  he  is  sound 
and  free  from  vice,  is  not  a  warranty  that  the  horse  will  re- 
main sound  or  free  from  vice.  And  if  you  believe,  from  the 
evidence,  that  the  horse  in  question  was  sound  and  free  from 
vice  at  the  time  of  the  sale,  then,  although  the  jury  may 
further  believe,  from  the  evidence,  that  the  horse  afterwards 
became  diseased,  unsound  or  vicious,  still,  such  after-acquired 
disease  or  vice  would  be  no  defense  to  an  action  brought  to 
recover  on  a  promissory  note  given  for  the  purchase  price  of 
the  horse. 

§  21.  Visible  Defects  not  Warranted  against. — The  court  in- 
structs the  jury,  that  although  they  may  believe,  from  the 
evidence,  that  the  plaintiff,  at  the  time  of  the  sale,  did  say  he 
would  warrant  the  said  horse  to  be  perfectly  sound,  still,  if 
they  further  believe,  from  the  evidence,  that  the  defendant 
had  all  reasonable  opportunities,  tlien  and  there,  to  inspect 
and  examine  the  said  horse,  and  if  you  further  believe,  from 
the  evidence,  that  there  were  no  defects  or  blemishes  about 
the  said  horse's  {eyes)  which  were  not  perfectly  visible  to  an 
ordinarily  skillful  and  cautious  observer,  then  such  blemishes 
or  defects  would  not  be  covered  by  said  warranty. 


582  WAEKANTY. 

A  general  warranty  of  the  soundness  or  quality  of  an 
article  of  personal  property  sold,  does  not  include  or  cover 
defects  or  blemishes  which  are  known  to  the  purchaser,  or 
which  are  open  and  visible  to  a  person  of  ordinary  skill  and 
intelligence,  at  the  time  of  the  sale.  To  cover  such  defects, 
they  must  be  expressly  named  or  mentioned  in  some  way, 
and  warranted  against,  unless  some  art  is  used  by  the  vendor 
to  conceal,  and  he  does  conceal,  such  defects.  Benj.  on 
Sales,  §  616;  Brown,  vs.  Bigeloio,  10  Allen,  242;  Mulvaney 
vs.  Bosenhurger,  18  Penn.  St.,  203 ;  YandewalJcer  vs.  Osmer, 
65  Barb.,  556. 

§  22.     Artifice    to   Prevent    Examination  by  Purchaser. — The 

jury  are  instructed,  that  the  general  rule  that  a  warranty  does 
not  protect  against  defects  that  are  plain  and  obvious  to  the 
senses  of  the  purchaser,  and  which  it  required  no  special  skill 
to  detect,  has  no  application  if  the  vendor  uses  any  art  or  trick 
to  conceal  the  delect,  and  does  conceal  it,  or  if  he  uses  any  arti- 
fice or  trick  to  withdraw  the  attention  of  the  purchaser  away 
from  the  defect,  so  as  to  prevent  him  noticing  what  he  might 
otherwise  have  noticed.  Chadsey  vs.  Green,  24  Conn.,  562; 
Brown  vs.  Bigeluio^  10  Allen,  242. 

If  the  jury  believe,  from  the  evidence,  that  the  plaintiff 
warranted  the  horse  sold  to  be  sound,  at  tlie  time  of  the  sale, 
and  that,  at  that  time,  the  eyes  of  the  horse,  or  either  of  them, 
was  so  affected  that  the  sight  was  impaired,  and  that  the  de- 
fect was  of  such  a  character  that  it  could  not  be  discovered  by 
a  person  of  ordinar3'  care  and  skill  in  such  matters,  and  was 
not  discovered  by  the  defendant,  or,  if  the  jury  believe,  from 
the  evidence,  that  at  the  time  in  question,  the  plaintiff,  by 
words  or  conduct,  intentionally  threw  the  defendant  off  his 
guard,  so  that  he  did  not  examine  the  horse's  eyes  as  closely 
as  he  otherwise  would,  and,  for  that  reason,  did  not  discover 
the  said  defects,  then  the  warranty  of  the  plaintiff  would 
cover  such  defects. 

§  23.  Burden  of  Proof. — The  court  instructs  the  jury,  that 
in  so  far  as  the  defendant  relies  upon  a  warranty  of  the  qual- 
ity of  the  pro])erty  sold  and  a  breach  of  the  same,  the  burden 
of  p]-oving  the  warranty  is  upon  the  defendant;  and,  unless 


WARRANTY.  583 

he  lias  proved  both  the  warranty  and  the  breach  alleged,  by 
a  preponderance  of  evidence,  he  will  not  be  entitled  to  any 
benefit  therefrom  in  this  suit  Biiriis  vs.  Nichols,  89  111., 
480. 

To  entitle  the  plaintiff  to  recover,  in  this  suit,  it  is  not  only 
necessary  for  the  jury  to  find,  from  the  evidence,  that  the 
plaintiff  warranted  the  animal  in  question  to  be  sound,  at  the 
time  of  the  sale,  but  it  must  further  appear,  from  the  evi- 
dence, that  tlie  animal  was  unsound  at  that  time;  and,  unless 
both  these  facts  appear,  from  the  evidence,  the  jury  should 
find  for  the  plaintiff,  so  far  as  regards  the  alleged  warranty. 
Bowman  vs.  Clemmer,  50  Ind.,  10. 

In  a  suit  to  recover  the  price  agreed  to  be  paid  for  goods 
sold  and  delivered,  if  the  defendant  relies  upon  a  warranty  and 
breach,  he  must  show  the  same  by  a  preponderance  of  testi- 
mony, in  order  to  make  the  defense  available.  Maltman  vs. 
Williamson,  69  111.,  423. 

In  this  case  it  is  incnimbent  on  the  defendant  to  establish,  by 
a  prejionderance  of  the  evidence,  the  warranty  alleged  in  the 
declaration,  and  also  a  breach  of  such  warranty  as  therein 
stated;  and  if,  after  carefully  considering  all  the  evidence  in 
the  case,  3^ou  find  the  weight  of  the  evidence  is  with  the  plaint- 
iff upon  either  of  these  points,  or  is  equal  in  weight  with  that 
of  the  defendant,  regarding  either  the  warranty  or  the  breach 
of  it,  then,  as  a  matter  of  law,  you  should  find  in  favor  of  the 
plaintiff  upon  the  question  of  warranty. 

§  24.  Measure  of  Damages. — The  jury  are  instructed,  that 
the  measure  of  damages  for  a  breach  of  warranty  of  the  sound- 
ness or  quality  of  an  article  of  personal  property  is  the  differ- 
ence between  the  actual  value  of  the  defective  article  at  the 
time  of  the  sale  and  what  it  would  have  been  worth  if  it  had 
been  as  warranted.  Ferguson  vs.  Hosier,  58  Ind.,  438 ;  Ault- 
man  vs.  Reiherlngton,  42  Wis.,  622. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  sold 
goods  to  the  defendant,  and  expressly  warranted  them,  or  at 
the  time  of  the  contract  used  any  words  which  were  intended 
to  lead,  and  which  did,  in  fact,  lead  the  defendant  to  believe 
that  plaintiff  intended  to  warrant  the  quality  of  said  goods,  in 
manner  and  form  as  charged  in  the  declaration,  and  that  the 


584  "WAKEAKXr. 

goods  so  sold  did  not  fill  the  warranty,  and  for  that  reason 
were  not  as  good  in  quality  as  those  contracted  to  be  sold  to 
the  defendant,  then  the  defendant  is  entitled  to  a  reduction 
from  the  plaintiff's  claim  to  an  amount  equal  to  the  difference 
between  the  actual  value  of  the  goods  and  what  they  would 
have  been  worth  if  they  had  answered  the  warranty. 


CHAPTER  XLVIL 
WATERCOURSES. 


Sec.     1.  Watercourse  defined. 

2.  No  right  to  divert  ancient  watercourse. 

3.  Owner  of  soil,  owner  of  surface  and  subterranean  water. 

4.  No  rig-ht  to  obstruct  the  natural  flow  of  surface  water. 

5.  Prescriptive  right  to  obstruct  the  flow  of  water. 

§  1.  Watercoui'se  Defined.  —  To  constitute  a  waterconrse 
there  must  be  a  stream  of  water,  including  banks,  bed  and 
water.  It  is  not  necessary  to  prove  that  the  water  flows  con- 
tinuously. It  may  be  dry  at  certain  seasons  of  the  year  and 
yet  be  called  a  stream  of  water,  but  it  must,  at  some  period  of 
the  year,  be  a  stream  of  water  ilowing  in  a  well  defined  chan- 
nel. SehUchter  vs.  Philips,  67  Ind.,  201 ;  Peck  vs.  Herring- 
ton,  109  III.,  611. 

A  stream  of  water  flowing  over  a  man's  land  is  a  current  of 
water  flowing  in  one  line  or  course,  between  banks  or  sides,  in 
a  certain  direction.  It  may  be  dry  in  a  dry  time,  but  it  must 
Jiave  a  well  detined  existence  as  a  stream,  when  there  is  water 
to  run  in  it. 

Occasional,  sudden  and  temporary  outbursts  of  water  which 
in  times  of  heavy  showers  and  freshets  fill  up  low  land  or 
marshy  places  and  ravines,  and  overflow  and  inundate  adjoining 
lands,  are  not  deemed  watercourses,  unless  such  water  flows 
ofE  through  a  well  defined  channel  which  it  has  worn  for  itself. 

§  2.  No  Right  to  Divert  Ancient  Watercourse. — If  the  jury 
believe,  from  the  evidence,  that  the  nature  of  the  country  was 
such  that  after  heavy  rains  or  the  melting  of  snows  it  naturally 
and  necessarily  collected  together  large  quantities  of  water  on 
defendant's  land,  and  that  such  water  was  regularly  discharged 
through  a  well  defined  channel  which  the  force  of  the  water  had 
made  for  itself  and  that  the  water  had  been  accustomed  to  flow 
through  that  channel  from  time  immemorial,  then  such  chan- 

(585) 


686  WATERCOUESES. 

nel  is  an  ancient  waterconrse,  and  the  defendant  would  have 
no  right  to  change  the  direction  of  such  watercourse  even  on 
his  own  land,  so  as  to  discharge  the  water  onto  the  plaintiff's 
land  at  a  point  different  from  what  it  had  been  accustomed  to 
flow.     ScMichter  vs.  Philips,  67  Ind.,  201. 

The  owner  of  land  through  which  a  watercourse  passes,  has 
a  right  to  receive  the  water,  when  the  water  in  its  natural 
cliannel  enters  his  land,  and  to  use  it  while  it  is  passing  over 
or  through  his  land,  but  he  must  restore  the  water  to  its  orig- 
inal natural  channel  whenever  it  leaves  his  land,  to  enter  that 
of  an  adjoining  owner.     Angell  on  Watercourses,  §  108. 

§  3.  The  Owner  of  the  Soil  is  the  Owner  of  the  Surface  and  Subter- 
ranean Water. — The  court  instructs  the  jury,  as  a  matter  of  law, 
that  water  that  percolates  through  the  soil,  beneath  the  sur- 
face, with  a  known  channel — water  which  temporarily  flows 
upon,  or  over  the  surface  from  falling  rains  or  melting  snows, 
without  a  channel,  but  simply  as  the  natural  and  artificial  ele- 
vations and  depressions  of  the  surface  may  guide  it,  is  re- 
garded as  a  part  of  the  land  and  belongs  to  the  owner  thereof, 
and  he  makes  such  use  of  the  water  as  he  sees  flt,  while  it 
remains  on  his  land.      Taylor  vs.  J^tckas,  54  Ind.,  167. 

§  4.     No  Right  to  Obstruct  the  Natural  Flow  of  Surface  Water. 

— If  the  jury  believe,  from  the  evidence,  that  the  plaintiff  is 
the  owner  (or  occnpant)  of  the  premises  described  in  the  dec- 
laration, and  that  said  premises  are  higher  ground  than  the 
adjoining  premises  occupied  by  the  defendant,  and  that  the 
natural  flow  of  the  water  is  from  the  premises  of  the  plaint- 
iff towards  and  onto  the  premises  occupied  by  defendant,  then 
the  defendant  is  bound  to  receive  upon  his  land,  all  the  water 
which  thus  naturally  flows  from  plaintiff's  land  onto  his,  and 
the  defendant  has  no  right  to  obstruct  in  any  way,  such  nat- 
ural flow  of  the  water  to  the  injury  of  the  plaintiff.  And  if 
the  jury  further  believe,  from  the  evidence,  that  the  defend- 
ant did  so  obstruct  the  natural  flow  of  the  water,  from  the 
plaintiff's  land  onto  his  own,  to  the  injury  of  the  plaintiff,  then 
the  plaintiff  has  a  right  to  recover  such  an  amount  as  dam- 
ages, as  the  jury  believe,  from  the  evidence,  the  plaintiff  has 
sustained. 


WATERCOURSES.  587 

The  jury  are  instructod,  that  the  phaintiff  has  no  right,  by 
ditches  or  other  artificial  means,  to  divert  the  water  from  his 
own  land  upon  the  land  of  the  defendant.  lie  has  only  the 
right  to  the  natural  flow  of  the  water  from  his  own  land  onto 
the  land  adjoining. 

If  the  jury  believe,  from  the  evidence,  that,  prior  to  the  acts 
complained  of,  the  plaintiff,  by  the  construction  of  the  ditch 
or  ditches,  or  by  an  artificial  embankment,  had  collected 
together  the  surface  water  upon  his  own  land  (or  had  dug  out 
springs),  and  thereby  caused  such  water  to  flow  in  unnatural 
quantities  upon  the  premises  of  defendant,  or  was  thrown 
back  uj^on  defendant's  premises  in  a  different  manner  from 
what  the  same  would  naturally  have  flowed,  and  to  his 
injury,  then  the  defendant  had  a  right  to  protect  his  premises 
from  such  unnatural  flow  of  water  by,  etc. 

If  the  jury  believe,  from  the  evidence,  that  the  water  from 
plaintiff's  land  did  not  naturally  drain  from  his  land  by  a 
flowing  upon  the  defendant's  land,  but  that  he,  by  drains  or 
other  artificial  means,  attempted  to,  and  did,  drain  the  water 
from  his  own  land,  and  caused  it  to  flow  in  unnatural  quanti- 
ties upon  defendant's  land,  and  that  defendant  only  stopped 
such  uimatural  flow  by  stopping  the  lower  end  of  snch 
ditches  or  other  means  of  draining  such  lands,  then  he  was 
justified  in  so  doing,  and  is  not  liable  for  such  acts,  provided 
the  jury  believe,  from  the  evidence,  that  such  drains  oi- 
ditches  had  not  existed  for  twenty  years  before  tlie  acts  com- 
plained of. 

§  5.     Prescriptive  Right  to  Obstruct  Flow  of  Water. — If  the 

jury  believe,  from  the  evidence,  that,  more  than  twenty  years 
before  the  commencement  of  this  suit,  the  owners  of  the  prem- 
ises in  question,  and  now  occupied  by  the  plaintiff  and  the  de- 
fendant, respectively,  tlirew  up  an  embankment  of  earth  upon 
what  was  then  understood  and  agreed  to  be  the  line  between 
them,  and  that  the  defendant  and  his  grantors  have  ever  since 
maintained  such  embankment,  not  higher  than  it  was  origi- 
nally built,  but  sufficiently  high  to  prevent  the  flow  of  water 
from  plaintiff's  premises  onto  defendant's  land,  except  in  times 
of  great  freshets  and  high  water,  then  the  defendant  has  ac- 
quired, by  prescription,  the  right  to  maintain  and  continue  such 


588  WATEKCOUKSES. 

embankment;  and  if  the  jury  further  believe,  from  the  evi- 
dence, that  after  said  enibankment  had  been  thus  maintained 
for  twenty  years  or  more,  the  plaintiff  cut  channels  through 
the  same  for  the  purpose  of  draining  his  own  land  onto  de- 
fendant's land,  then  the  defendant  had  a  right  to  till  up  such 
channels. 


CHAPTER   XLVIII. 

CONTESTING  WILLS. 


CAPACITY    IN    GENERAL,  ETC. 

Sec.     1.  The  right  to  make  a  will. 

2.  Helatives  have  no  legal  or  natural  rights. 

3.  The  essentials  of  a  will. 

4.  The  jury  must  take  the  law  from  the  court. 

5.  Witnessing  a  will — What  is  sufficient. 

INSANITY UNSOUND  MIND. 

6.  The  issue  to  be  tried. 

7.  Burden  of  proof. 

8.  Sound  and  disposing  mmd  and  memory. 

9.  The  test  of  testamentary  capacity. 

10.  Testamentary  capacity  defined. 

11.  Partial  insanity — Monomania. 

12.  Delusi  jn  regarding  wife  or  child'd  property. 
18.  Sanity  presumed. 

14.  Insanity — Rule  for  determining.  » 

15.  Settled  insanity  presumed  to  continue. 

16.  Intoxication. 

17.  Drunkenness — When  insanity. 

18.  Intoxication  may  produce  insanity. 

19.  Failure  of  memory. 

20.  Old  age  does  not  necessarily  incapacitate. 

21.  Previously  expressed  purpose. 

22.  Will  may  be  referred  to  as  showing  mental  condition. 

23.  Expert  testimony. 

24.  Testimony  of  subscribing  witness. 

UNDUE  INFLUENCE. 

25.  Issue  to  be  tried — Burden  of  proof. 

26.  What  must  appear. 

27.  The  influence  must  afPect  the  will,  etc. 

28.  It  must  destroy  the  free  agency. 

29.  Legitimate  influence. 

30.  Legitimate  advice  or  persuasion. 

testator's  MOTIVES,  ETC. 

31.  Testator's  motives  cannot  be  questioned. 

32.  Motives  may  be  inquired  into,  when. 

33.  Unlawful  cohabitation  with  legatee,  etc. 
84.  Testator  influenced  by  groundless  fears. 
35.  Provisions  of  the  will  may  be  considered. 

(589) 


590  COJS^TESTING  WILLS. 

CONTESTING  ON  APPEAL  FROM  PROBATE  COURT — INSANITY. 
Sec.  86.     Model  instructions — Eraser  vs.  Jennison,  42  Mich.,  206. 

CONTESTING  IN  CHANCERY INSANITY. 

37.     Model  instructions — American  Bible  Soc.  vs.  Price,  115  111.,  623. 

§  1.  The  Right  to  Make  a  Will.  — The  court  instructs  the 
jury,  as  a  matter  of  liiAv,  that  every  person  of  {comjpetent  age, 
as  fixed  hy  statute)  and  of  sound  mind,  has  a  right  to  make  a 
disposition  of  his  estate  by  will,  and  to  so  devise  his  property 
as  to  divest  those  who  would  otherwise  inherit  it  as  his  legal 
heirs,  of  their  interest  therein.  Generally,  the  object  of  a  last 
will  and  testament  is  to  enable  the  testator  to  devise  his  prop- 
erty as  to  him  may  seem  best. 

§  2.  Relatives  Have  no  Legal  or  Natural  Rights,  etc. — The 
jury  are  instructed,  that  no  next  of  kin,  no  matter  how  near 
they  may  be,  can  be  said  to  have  any  legal  or  natural  rights 
to  their  kinsman's  estate,  which  can  be  asserted  against  the 
wnl!  of  said  kinsman.  The  law  of  the  land  has  placed  every 
person's  estate  wholly  under  the  control  of  the  owner,  subject 
to  such  final  disposition  of  it  as  he  may  choose  to  make  by  his 
last  will  and  testament,  limited  only  by  the  statutory  rights  of 
his  widow. 

Children  have  no  natural  or  legal  rights  to  the  estate  of 
their  father  which  can  be  asserted  against  his  disposition  of  it 
by  will. 

A11  parents  have  a  right  to  judge  as  to  who  are  the  proper 
objects  of  their  bounty;  and,  if  free  from  undue  influence 
and  insane  delusions,  and  of  sufficient  mental  capacity,  may 
give  their  property  to  any  ]ierson  whomsoever.  A  child  has 
no  legal  or  natural  right  to  the  estate  of  its  father  which 
courts  or  juries  can  recognize  against  the  will  of  the  father. 
J^race  vs.  BIarA\  17  N".  E.  Eep.,  GQ. 

A  man  nia^^  change  his  will  as  often  as  it  pleases  him  to  do 
so,  and  the  fact  that  he  has  changed  it  is  of  itself  no  evidence 
against  the  validity  of  the  last  will.  The  fact  that  the  testa- 
tor had  executed  previous  wills,  different  in  their  character 
from  the  one  last  executed,  if  shown  by  the  evidence,  is  im- 
material in  this  case. 

The  jury  have   nothing  to  do  with   the  fairness  or  unfair- 


CONTESTING  WILLS.  591 

n3ss  or  the  equity  or  inequity  of  the  testamentary  disposi- 
tions of  the  property;  tlie  only  question  for  them  to  try  is 
this:  Is  the  writing  offered  the  will  of  the  deceased?  And 
your  verdict  must  be  either  that  it  is  his  will  or  that  it  is  not. 

§  3.  Essentials  of  a  ^Ym—{See  Different  Siaiuies).— The 
court  instructs  the  jury,  that  to  entitle  a  will  to  probate  four 
things  must  concur: 

yirst.  It  must  be  in  writing  and  signed  by  the  testator,  or 
in  his  presence  by  some  one  under  his  direction. 

Second.  It  must  be  attested  by  two  or  more  credible  wit- 
nesses. 

Third.  Two  of  the  attesting  witnesses  must  testify  that 
they  saw  the  testator  sign  the  will  in  their  presence,  or  that 
he  acknowledged  the  same  to  be  his  act  and  deed. 

Fourth.  The  two  witnesses  must  declare  on  oath,  or  affirma- 
tion, that  they  believe  the  testator  to  have  been  of  sound 
mind  and  memoi-y  at  the  time  of  signing  or  acknowledging  the 
same. 

§  4.     The   Jury  Should  Take  the  Law  from  the  Court. — The 

court  instructs  the  jury,  that  it  is  their  sworn  duty,  as  jurors, 
to  accept  the  law  of  tliis  case  from  the  court;  and  the  jury 
are  not  permitted  to  determine  what  the  law  is  according  to 
their  own  unaided  judgments,  but,  in  arriving  at  a  conclusion, 
they  mnst  determine  the  question  of  facts  from  the  evidence, 
and  be  governed  by  the  instruction  of  the  court  as  to  the  law. 

§  5.  Witnessing  AVill — What  is  Sufficient — {See  the  Different 
Statutes). — The  court  instructs  the  jury,  that  if  they  believe, 
from  the  evidence  (given  by  the  subscribing  witnesses),  that 
the  deceased  signed  the  papei-,  purporting  to  be  his  will,  in 
the  presence  of  one  of  the  subscribing  witnesses,  and  acknowl- 
edged it  to  be  his  act  and  deed  to  the  other,  and  tliat  they 
subscribed  the  same  as  such  witnesses,  at  his  request  and  in  his 
presence,  and  if  the  jury  further  believe,  that  the  deceased  was 
of  sound  mind  and  memory  at  the  time,  then  this  is  a  compli- 
ance with  tlie  law,  and  is  ^riraa  facie  evidence  of  the  due 
execution  of  tlie  will. 

The  court  instructs  the  jury,  that  it  is  not  necessary  that 


592  CONTESTING  M'lLLS. 

the  subscribing  witnesses  should  know  at  the  time  of  attest- 
ing it  that  it  is  the  will,  or  that  the j  should  know  the  contents 
of  it. 

If  the  witnesses  to  a  will,  while  signing  their  names  thereto, 
as  such  witnesses,  are  in  such  a  place  that  the  testator  can  see 
them,  if  he  chooses  to,  they  are  to  be  regarded  as  in  his  pres- 
ence, within  the  meaning  of  the  statute,  and  it  is  not  neces. 
sary  that  they  shall  be  in  the  same  room  with  the  testator,  or 
that  he  shall  actually  see  them  sign.  Ambre  vs.  Weishaar^ 
74  111.,  109. 

INSANITY — UNSOUND  MIND. 

§  6.  Issue  to  be  Tried. — The  jury  are  instructed,  that  the 
only  question  in  this  case  for  them  to  try  is  this:  Is  the  writ- 
ing offered  the  will  of  A.  B.,  deceased  ?  And  your  verdict  will 
be,  either  that  it  is  his  will,  or  that  it  is  not. 

The  question  to  be  passed  upon  by  the  jury  is  this:  "Was 
the  mind  and  memory  of  the  deceased,  at  the  time  of  the  mak- 
ing of  the  alleged  will,  sutHciently  sound  to  enable  him  to 
know  and  understand  the  business  in  which  he  was  engaged 
at  the  time  he  executed  the  will,  judging  his  competence  of 
mind  by  the  nature  of  the  act  to  be  done,  and  from  a  consider- 
ation of  all  the  circumstances  in  the  case.  Trisk  vs.  Newell^ 
62  111.,  196. 

That,  in  the  examination  of  wills,  the  sanity  or  insanity  of 
the  testator  is  always  a  question  of  fact,  to  be  decided  by  the 
jury  upon  the  whole  evidence,  according  to  the  plain  princi- 
ples of  common  sense. 

§  7.  Biirdon  of  Proof. — The  jury  are  instructed,  that  when 
a  will  is  proved,  including  soundness  of  mind  and  memory,  on 
the  part  of  the  testator,  by  the  testimony  of  two  subscribing 
witnesses,  and  unsoundness  of  mind  is  alleged  as  a  ground  for 
setting  the  will  aside,  the  fact  of  insanity,  or  of  unsoundness  of 
mind,  must  be  established  with  reasonable  certainty;  the  evi- 
dence of  insanity  should  preponderate,  or  the  will  must  be 
taken  as  valid.  If  there  is  only  a  bare  balance  of  evidence,  or 
a  mere  doubt  only,  of  the  sanity  of  the  testator,  the  ])resump- 
tion  in  favor  of  sanity,  if  proved  as  above  stated,  must  turn 


CONTESTING    WILLS.  593 

tlie  scale  in  favor  of  the  paiiity  of  tlie  testator.     Jarman  on 
Wills,  5  Am.  Ed.,  104;    Eed.  on  Wills,  31-50;    FerJdns  \i\ 
Perkins,  39  N.  H.,  163;    Brools  vs.    Barrett,  7   Pick.,  94 
Turner  vs.  Cook,  36  Ind.,  129;  Dickie  vs.  Carter,  42  111.,  376 
Terry  VQ.  Buffington,  11  Ga.,  337;  In  re  Caff  man,  12  la.,  491 
Cotton  vs.   Ulmer,  45  Ala.,  378. 

When  the  party  insistinor  on  the  probate  of  the  will  has  es- 
tablished the  sanity  of  the  testator,  at  the  making  of  the  will, 
by  the  oath  or  affirmation  of  two  of  the  subscribing  witnesses, 
and  that  the  will  was  legally  executed,  acknowledged  and  wit- 
nessed, as  explained  in  these  instructions,  then  a  jpriina  facie 
case  is  made  out;  and  in  such  a  case,  the  party  seeking  to  con- 
test the  will,  on  the  ground  of  insanity,  fraud,  compulsion,  or 
for  any  other  cause,  takes  u])on  himself  the  burden  of  proving 
the  ground  relied  upon;  and  the  cause  relied  upon  must  be 
proved  by  a  preponderance  of  evidence;  and  if  the  question 
is  left  evenly  balanced,  the  verdict  should  be  in  favor  of  the 
validity  of  the  will. 

The  juiy  are  instructed,  that  the  burden  of  proof  is  upon 
the  party  asserting  the  sufficiency  of  the  will  to  prove  that,  at 
the  time  of  its  execution,  the  testator  was  of  sound  mind  and 
memo!-y,  within  the  meaning  of  the  law,  as  explained  in  these 
instructions,  and  this  is  to  be  determined  by  the  jury,  not 
alone  from  the  statemenis  or  evidence  of  any  one  or  more 
persons,  or  class  of  witnesses,  but  from  a  consideration  of  the 
whole  of  the  evidence  in  the  case. 

The  burden  of  proving  testamentary  capacity  is  on  the  party 
alleging  it,  to  the  end  of  the  trial,  and  such  person  must  pro- 
duce evidence  sufficient  to  outweigh  that  which  is  opposed  to 
sanity,  or  else  sanity  is  not  proved — and  if  the  jury  find  that 
the  evidence  relating  to  the  testator's  mental  soundness  is 
equally  balanced,  then  they  must  not  allow  the  presumption 
of  sanity  to  decide  the  question  in  favor  of  soundness.  The 
burden  of  proof  is  upon  the  party  alleging  it  to  establish  men- 
tal capacity  by  other  evidence  than  tlie  presumption  of  sanity. 
Fraser  vs.  Jennison,  42  Mich.,  206. 

§  8.     Sound   an;l    D'spnsinj?  Mii  d     nl  Memory. — The    law  is, 
that  to  be  of  sound  and  disposing  mind  and  memory,  so  as 
to    be   capable    of  making  a  valid  will,  it  is  sufficient   if  the 
38 


594:  CONTESTING    WILLS. 

testator  has  an  -nndcrstanding  of  tlie  nature  of  the  bnsniess  in 
which  he  is  engaged — a  recollection  of  the  property  he  means 
to  dispose  of — of  the  persons  who  are  the  objects  of  his  bount}'' 
and  the  manner  in  which  it  is  to  be  distributed  among  thera. 
It  is  not  necessary  that  he  should  compreliend  the  provisions 
of  his  will  in  their  legal  form.  It  is  sufficient  if  he  under- 
stands the  actual  disposition  which  he  is  making  of  his  prop- 
erty at  the  time. 

If  the  mind  and  memory  of  a  testator  are  sufficiently  sound 
to  enable  him  to  know  and  understand  the  extent  and  amount 
of  his  property,  and  his  just  relations  to  the  natural  objects  of 
his  bount}',  and  the  business  in  which  he  is  engaged,  at  the  time 
of  executing  his  will,  then  he  is  of  sound  mind  and  memory 
within  the  meaning  of  the  law.  Jarman  on  Wills,  5  Am.  Ed., 
103,  et  seq.;  1  Red.  on  Wills,  123-135 ;  Freeman  vs.  Easley, 
7  N.  E.  Eep. 

§  9.  Test  of  Testamentary  Capacity. — The  jury  are  instructed, 
that  a  testator,  not  affected  with  any  morbid  or  insane  delusion 
as  to  any  of  the  natural  objects  of  his  bounty,  possesses  testa- 
mentary capacity,  within  the  meaning  of  the  law,  if  he  has  a 
clear  understanding  of  the  nature  of  the  business  in  which  he 
is  engaged,  of  the  kind  and  value  of  the  property  devised,  and 
of  the  persons  who  are  the  natural  objects  of  his  bounty,  and 
of  the  manner  in  which  he  desires  his  property  to  be  distrib- 
uted.    Fraser  vs.  Jennison,  42  Mich.,  206. 

The  will  in  question  in  this  case  is  not  a  valid  will  unless  the 
jury  believe,  from  the  evidence,  that  the  testator,  A.  B.,  not 
only  intended  to  make  such  a  disposition  of  his  property,  as  is 
here  made,  of  his  own  free  will,  but  was  also  capable  of  know- 
ing what  he  was  doing,  of  understanding  to  whom  he  was 
giving  his  property  and  in  what  proportions,  and  whom  he 
was  dej)riving  of  it  as  his  heirs  who  would  otherwise  have  in- 
Jierited  it;  and  was  also  capable  of  understanding  the  reasons 
for  giving  or  withholding  his  bounty  as  to  them.  MeGinnis 
vs.  Kempsif,  27  Mich.  363;  Eraser  vs.  Jennison^  42  Mich.,  206. 

§  10.  Testamentary  Capacity. — The  jury  are  instructed,  that 
what  is  meant  by  testamentary  caimcity,  as  used  in  these 
instructions,  is  a  rational  understanding  on  the  part  of   the 


CONTESTING   WILLS.  695 

testator  at  the  time  of  the  making  of  his  will,  of  the  business 
he  was  engaged  in,  of  the  kind  and  value  of  the  property 
devised,  of  the  persons  who  were  the  natural  objects  of  his 
bounty,  and  of  the  manner  in  which  he  wished  to  dispose  of  his 
property,  unaffected  by  any  morbid  and  insane  delusion  regard- 
ing any  of  these  subjects. 

The  jury  are  instructed,  that  in  order  to  make  a  valid  will 
the  law  requires  that  a  person  shall  be  of  sound  and  disposing 
mind  and  memory,  as  defined  in  these  instructions — and  testa- 
mentary incapacity  does  not  necessarily  require  that  a  person 
shall  be  technically  insane.  Weakness  of  intellect,  whether  it 
arise  from  extreme  old  age,  from  d'sease  or  great  bodily 
infirmity  or  suffering,  or  from  intemperance,  or  from  all  of 
these  combined,  may  render  the  testator  incapable  of  making 
a  valid  will,  provided,  such  weakness  really  disqualifies  him 
from  knowing  or  appreciating  the  nature,  effects  or  conse- 
quences of  the  act  he  is  engaged  in.  McGmnis  vs.  Kem-pfoj^ 
27  Mich.,  363. 

§  11.  Partial  Insanity — Monomania. — The  court  instructs  the 
jury,  that  "  a  man  who  is  very  sober  and  of  right  understand- 
ing in  all  "other  things,  may,  in  some  one  or  more  particulars," 
be  insane;  that  thei'C  is  a  partial  insanity,  and  a  total  insanity; 
and  that  such  partial  insanity  may  exist  as  it  respects  particu- 
lar persons,'  things  or  subjects,  while,  as  to  others,  the  person 
may  not  be  destitute  of  the  use  of  reason.  And,  althouarh  a 
testator  has  some  insane  delusion  upon  some  subjects,  yet,  if 
he  has  mind  enough  to  know  and  appreciate  his  relation  to  the 
natural  objects  of  his  bounty,  and  the  character  and  effect  of 
the  dispositions  of  his  property,  then  he  has  a  mind  sufliciently 
sound  to  make  a  valid  will. 

The  court  instructs  the  jury,  that  the  law  recognizes  the 
diff'erence  between  general  and  partial  insanity,  and  if  the  jury 
believe,  from  the  evidence,  that  the  will  here  offered  was  made 
at  a  time  when  the  testator  was  laboring  under  the  influence 
of  partial  insanity,  and  is  the  product  of  such  partial  insanity, 
then  it  is  as  invalid  as  if  made  under  the  effects  of  an  insanity 
ever  so  general. 

A  person  may  have,  upon  some  subjects,  and  even  generally, 
mind  and  memory,  and  sense  to  know  and  comprehend  ordi- 


596  CONTESTING   WILLS. 

nary  transaction?,  and  yet  npon  the  subject  of  tliose  who  would 
naturally  be  the  objects  of  his  care  and  bounty,  and  of  a  rea- 
sonable and  proper  disposition  as  to  them  of  his  estate,  he  may 
be  of  unsound  mind.  1  Eed.  on  Wills,  63  j  Jarman  on  Wills, 
5  Am.  Ed.,  77,  113. 

§  12.  Delusion  Regarding  "Wife  or  Child's  Property. — The 
court  instructs  the  jury,  that  if  they  believe,  from  the  evi- 
dence in  this  case,  that  at  the  time  the  will  in  controversy  was 
executed,  the  testator  was  laboring  under  an  insane  delusion  in 
regard  to  the  value  of  his  wife's  propert}',  and  that  he  was  in- 
fluenced or  controlled  in  the  making  of  said  will  by  said  deli  - 
sion,  or  that  the  said  testator  was  laboring  under  an  insane 
delusion  in  regard  to  M'hat  amount  of  property  he  had  already 
ffiven  to  his  daucrhter,  and  that  in  making  said  will  he  was  in- 
fluenced  or  controlled  by  such  delusion,  then  the  said  testator 
was  not  of  sound  mind  and  memory,  as  is  contemplated  and 
required  by  the  law,  and  any  pai^er  purporting  to  be  a  will 
executed  by  him  under  such  circumstances,  is  not  a  valid  and 
legal  will,  and  the  jury  should  find  the  issues  for  the  contest- 
ants. 1  Ked.  on  Wills,  72,  90;  1  Jarm.  on  Wills,  lUO  et  seg.; 
Am.  Bible  Soc,  115  111.,  623. 

§  13.  Sanity  is  Presumed. — The  court  instructs  the  jury,  that 
in  all  cases  involving  questions  of  sanity  and  insanity,  prhno 
facie  the  person  is  sane,  and  when  there  is  only  evidence  suf- 
ticient  to  raise  a  doubt  of  a  person's  insanity,  the  presumption 
in  favor  of  sanity  must  prevail.  When  a  will  or  other  instru- 
ment is  made  by  a  person  of  competent  age,  and  under  no 
legal  disability,  it  will  be  taken  and  held  to  be  valid  and  bind- 
ing until  incompetency  is  established,  by  a  preponderance  of 
evidence.      Wyatt  vs.  Walker,  44  ill.,  485. 

§  14.  Insanity — How  Determined. — The  jury  are  instructed, 
that  in  determining  whether  or  not  a  man  is  insane,  he  should 
be  compared  with  himself,  and  not  with  others.  His  manner, 
talk  and  actions  at  a  time  when  it  is  alleged  he  was  insane, 
should  be  com])ared  with  liis  manner,  talk  and  action  at  a  time 
when  he  was  sane. 

§  15.     Settled  Insanity  Presumed  to  Continue. — The  jury  are 


CONTESTING    WILLS.  697 

instructed,  that  wlien  settled  insanity  is  once  shown  to  exist,  it 
is  presumed  to  continue  until  restoration  to  reason  is  shown; 
but  such  presumption  arises  only  in  cases  of  settled  insanity, 
and  if  complete  restoration  of  reason  is  thown,  then  no  more 
presumption  of  insanity  arises  in  the  case  of  the  execution  of 
a  will  than  if  the  testator's  mind  had  never  been  affected.  1 
Eed.  on  Wills,  112. 

.  While  it  is  true  that,  in  the  absence  of  any  evidence,  tlie 
law  always  presumes  that  a  man  is  sane,  yet  if  insanity,  either 
partial  or  total,  be  proved  to  exist  at  any  time  before  the 
making  of  a  will,  it  will  be  presumed  to  have  continued, 
unless  the  contrary  be  shown,  by  a  preponderance  of  the  evi- 
dence.    JIe?iH?is  vs.  Zightner,  18  111.,  282. 

§  16,  Intoxication. — The  jury  are  instructed,  that  neither 
intoxication,  nor  the  actual  stinmlus  of  intoxicating  liquor  at 
the  time  of  executing  a  will,  incapacitates  the  testator,  unless 
the  excitement  be  such  as  to  disorder  his  faculties  and  pervert 
his  judgment.  1  Jarman  on  Wills,  5  Am.  Ed.,  97;  Gore  vs. 
Gibso}^  13  M.  &  W.,  623;  Gardner  vs.  Gardner,  22  Wend., 
526;  Thompson  vs.  Kyner,  65  Pa.  St.,  368;  In  re  Convey'' s 
Will,  52  la.,  197. 

§  17.  Drunkenness  Insanity,  When. — The  court  instructs  the 
jury,  that  drunkenness  itself  is  a  species  of  insanity,  and  may 
invalidate  a  will  made- during  the  drunken  fit;  and  long-con- 
tinued habit  of  intemjierance  may  gradually  impair  the  mind 
and  destroy  its  faculties,  so  as  to  produce  insanity  of  another 
kind;  drunkenness  long  continued,  or  much  indulged  in,  may 
produce  on  some  minds,  and  with  some  temperaments,  perma- 
nent derangement  and  fixed  insanit}'.  Whether  in  this  case 
intemperate  habits  or  drunkenness  on  the  part  of  the  deceased 
have  been  proved,  and  whether  his  mind  was  thereby  affected, 
and  to  what  extent,  if  any,  are  questions  of  fact  to  be  deter- 
mined by  the  jury,  from  a  con.^ideration  of  all  the  evidence. 
1  Eed.  on  Wills,  160-162;  1  Jarm.  on  Wills,  5  Am.  Ed.,  97; 
Wharton  &  Stille,  §  36  et  seq.;  Ray  Med.  Jur.,  §  390. 

§   18.     Intoxication  May  Produce  Insanity. — The  court  instructs 
the  jury,  that  while  it  is  not  the  law,  that  a  dissipated  man 


598  iONTESTING    WILLS. 

cannot  execute  a  will,  nor  that  one  who  is  in  the  habit  of  ex- 
cessive indulgence  in  strong  drink  must  be  wholly  free  from 
its  influence  when  performing  such  an  act;  yet,  if  fixed  mental 
disease  has  supervened  upon  intemperate  habits,  the  man  is  as 
incompetent  to  execute  a  valid  will  as  though  such  mental 
disorder  resulted  from  any  other  cause.  1  Red,  on  "Wills,  92 
et  seq. 

§  19.  Failure  of  Memory. — If  the  testator's  mind  is  sound, 
although  his  jnomoi'y  maj'  be  impaired,  he  may  be  of, sound 
mind  and  memory  in  the  sense  in  which  the  phrase  is  used  in 
law;  and  in  order  to  destroy  the  capacity  of  a  person  to  make 
a  will,  on  account  of  failure  of  memory,  the  failure  nmst  be 
sush  as  to  extend  to  his  immediate  fami'y,  relatives  and 
friends,  and  the  nature,  extant  and  value  of  his  property.  1 
Eed.  on  Wills,  95  et  seq. 

§  20.  Old  Age  Does  not  Necessarily  Incapacitate. — The  jury 
are  instructed,  that  a  man  may  freely  make  his  last  will  and 
testament,  no  matter  how  old  he  may  be ;  provided,  he  has 
the  requisite  mental  cajmcity,  and  is  a  free  agent  in  making  it. 
The  control  which  the  la^  gives  a  man  over  the  disposal  of 
his  property  may  be  one  of  the  most  efficient  means  he  has  in 
old  age  of  commanding  the  attentions  usually  required  by  his 
infirmities.'  1  Red.  on  Wills,  95  et  seq.  See  Ames'  Will  vs- 
Blades,  51  la.,  596.  .        . 

§  21.  Previously  Expressed  Purposes. — The ,  court  instructs 
the  jury,  that  in  determining  whether  the  ])aper  in  question 
offered  as  a  will  is  entitled  to  be  so  regarded,  the  paper  itself 
may  be  considered  in  connection  with  all  the  other  evidence 
in  the  case  in  determining  the  question  of  sanity  or  unsound- 
ness of  mind.  And  if  the  jury  believe,  from  the  evidence, 
that  the'  deceased,  before  executing  the  will,  had  expressed 
any  fixed  purpose?  and  intentions  regarding  the  disposition  of 
his  property,  at  variance  with  the  provisions  of  the  alleged 
will,  then  the  jury  should  consider  whether  or  not  the  provis- 
ions of  the  will  are  inconsistent  with  sanity  itself,  and  with 
his  previously  expressed  and  fixed  puri:)oses,  and  if  the  jury 
find  that  they  are  so,  then  these  facts  also  should'  be  weighed 


CONTESTING    WILLS.  599 

by  the  jury  in  determining  the  question  of  sanity  or  nnsonnd- 
ness  of  mind  of  the  deceased  at  the  time  of  its  execution. 
D>je  vs.  Youn(/,  5b  la.,  4:'d3\. /Stevenson  \&.  Stevenson,  62  la,, 
163. 

§  22.  Will  may  be  Referred  to  as  Showing,  etc. — The  jury 
are  instructed,  that  while  the  provisions  of  the  will  may  be 
considered  by.  the  jury,  in  connection  with  all  the  other  evi- 
dence in  the  case,  for  the  purpose  of  determining  the  mental 
condition  of  the  testator  at  the  time  of  its  execution,  still,  in 
order  to  defeat  the  will  upon  the  ground  alone  of  the  charac- 
ter of  such  dispositions,  they  must  not  only  be  in  some  degree 
extravagant,  and  ap]mrently  unreasonable,  but  they'  must  de- 
part so  far  from  what  should  bo  regarded  as  natural  and 
a.pparently  reasonable,  as  to  appear  fairly  attributable  to  no 
other  cause  than  that  of  a  disordered  intellect  or  unsound 
mind.     In  re  Cmvefs  Will  52  la.,  197;  2  K  W.  Rep.,  1081. 

The  jury  are  instructed,  that  the  unequal  distribution  of  his 
property,  by  will,  is  not  of  itself  any  evidence  of  the  insanity 
gf  the  testator. 

In  determining  the  question  of  the  validity  of  this  will  the 
jury  have  a  right,  and  it  is  their  duty,  to  take  into  considera- 
tion the  provisions  of  the  will  itself,  in  connection  with  all  the 
other  evidence  that  has  been  offered  in  reference  to  the  ques- 
tion whether  the  deceased  was,  or  was  not,  of  sound  mind  and 
memory  at  the  time  of  its  execution.     Ihid. 

§  23.  Expert  Testimony. —  The  testimony  of  medical  men  of 
large  experience  in  their  profession,  upon  the  question  of  tlie 
existence  or  non-existence  of  'Soundness  of  mind,  is,  as  a  gen- 
eral rule,  entitled  to  more  consideration  than  the  testimony  of 
unprofessional  witnesses,  who  have  not  devoted  their  attention 
to  the  same  class  of  studies.     , 

The  jury  are  instructed,  that  while  it  is  true  that  the  testi- 
mony of  medical  men  of  large  experience,  as  a  general  rule, 
in  this  class  of  cases,  is  entitled  to  more  consideration  or 
weight  in  the  minds  of  the  jury  than  that  of  unprofessional 
men,  still,  whether  the  testimony  of  the  medical  men,  who 
have  testified  in  this  case,  is  entitled  to  more  weight  than  that 
of  other  ^vitnesses,  is  a  question  entirely  for  the  jury,  to  be 


600  COI^TESTING    WILLS. 

determined  by  tliein  from  a  careful  consideration  of  all  tlie 
evidence  in  the  case.  Meeker  vs.  Meekei\  37  JST.  W.  Hep., 
773;  Blale  vs.  Eourke,  3S  K  W.  Rep.,  3U2. 

§  24.  Testimony  of  Subscribing  AVitnesses. — The  court  in- 
structs tlie  jury,  that  the  mere  fact  that  a  person  is  a  subscrib- 
ing witness  to  a  will,  does  not  entitle  his  opinon  of  the  com- 
petency of  the  testator  to  execute  the  same,  to  anymoie 
weiglit  than  the  opinion  of  any  other  witness  equally  credible 
and  intelligent,  and  with  equal  opportunities  forjudging;  and 
if  it  happens  that  he  is  selected,  at  the  moment,  merely  for 
the  purpose  of  meeting  the  legal  requirements,  his  opinion  as 
to  the  testator's  strength  of  mind  may  be  of  very  little  weight 
or  importance. 

The  weight  of  the  evidence,  from  the  opinions  of  sub.;crib- 
ing  witnesses,  depends  upon  the  same  considerations  which 
affect  the  weight  of  the  opinion  of  any  other  witnesses  upon 
the  question  of  the  testator's  competency.  Whetlier  a  sub- 
scribing witness  or  not,  we  must  look  at  the  intelligence  of  the 
man,  and  the  means  he  enjoyed  of  forming  the  opinion  which 
he  advances,  and  give  little  or  more  weight  to  his  opinion  ac- 
cordingly. 

UNDUE  INFLUENCE. 

§  25.  Issue  to  be  Tried. — The  jury  are  instructed,  as  a  mat- 
ter of  law,  the  only  question,  in  this  case,  for  them  to  try,  is 
this:  Is  the  writing  here  offered  the  will  of  A.  B.,  deceased? 
And  your  verdict  will  be,  that  it  is  his  will  or  that  it  is 
not. 

And  the  real  inquiry  to  be  determined  is:  Did  the  said  A. 
B.,  deceased,  make  and  execute  the  alleged  will,  in  all  its  ])ro- 
visions,  of  his  own  free  will  and  volition,  so  that  it  now  ex- 
presses his  own  wishes  and  intention,  or  was  he  constrained  or 
coerced,  through  the  undue  influence,  restraint  or  coercion  of 
others,  in  making  his  will,  to  act  against  his  own  desire  and 
intention,  as  regards  the  disposition  of  his  property,  or  any 
part  of  it? 

The  burden  of  proof  is  upon  the  contestants  to  show  that 
the  making  of  the  will  M'as  obtained  by  undue  influence;  and 


CONTESTING    WILLS.  601 

in  order  to  defeat  the  probate  of  the  will  on  this  account,  it 
must  aj^pear  to  your  satisfaction,  by  a  preponderance  of  the  evi- 
dence, that  undue  influence  was  employed;  and,  to  constitute 
undue  influence,  it  must  appear  to  be  such  influence  or  restraint 
as  caused  the  execution  of  the  will  by  the  decedent,  against 
his  own  preference  or  desire  in  the  matter.  Mere  advice  or 
persuasion  to  induce  a  testator  to  make  a  will  or  influence  the 
disposition  of  his  property  by  will,  is  not  undue  influence. 
WeMer  vs.  SulllvMi,  12  N.  E.  Rep.,  319;  58  la.,  260. 

§  26.  What  Must  App?ar. — The  jury  are  instructed,  that  no 
general  rule  can  be  laid  down  as  to  what  constitutes  undue  in- 
flueiice  in  this  class  of  cases,  farther  than  this,  that  in  order 
to  make  a  good  will  a  man  must  be  a  free  agent,  and  feel  at 
liberty  to  carry  out  his  own  wishes  and  desires;  and  any  re- 
straint, threats  or  intimidations  brought  to  bear  upon  the  tes- 
tator, which  he  has  not  the  strength  of  mind  or  will  to  resist, 
if  exerted  so  as  to  coerce  him  against  his  desire  and  purpose 
into  the  making  of  his  will,  or  any  of  its  provisions,  is  undue 
influence  within  the  meaning  of  the  law.  And  whether  such 
undue  influence  existed  in  this  case  must  be  determined  by 
the  jury,  from  a  consideration  of  all  the  evidence,  in  view  of 
the  law  as  given  you  by  the  court.  Bradford  vs.  Vinior,  26 
K  W.  Eep.,  401. 

The  influence  exercised  over  a  testator  which  the  law  re- 
gards as  undue  or  illegal,  must  be  such  as  to  destroy  his  free 
agency  in  the  matter  of  making  his  will;  but  it  matters  not 
liow  little  the  influence,  if  the  free  agency  is  destroyed  it 
vitiates  the  act  which  is  the  reult  of  it;  and  the  amount  of 
undue  influence  which  will  be  sufficient  to  invalidate  a  will 
may  vary  with  the  strength  or  weakness  of  the  mind  of  the 
testator;  and  the  influence  which  would  subdue  and  control  a 
mind  and  will  naturally  weak,  or  one  which  had  become  im- 
paired by  age,  disease  or  other  cause,  might  have  no  effect  to 
overcome  a  mind  naturally  strong  and  unimpaired.  1  Ked. 
on  Wills,  510. 

To  avoid  a  will  on  the  ground  of  undue  influence,  it  must 
be  made  to  appiear,  by  the  evidence,  that  it  was  obtained  by 
means  of  influence  amounting  to  moral  coercion,  destroying 
free  agency,  or  by  importunity  which  could  not  be  resisted,  so 


602  CONTESTING   WILLS. 

that  the  testator  was  constrained  to  do  that  which  was  against 
his  actual  will,  and  which  influence  he  was  unable  to  withstand, 
or  too  weak  to  resist.  Brick  vs.  Brick,  QQ  N.  Y.,  144;  Barnes 
vs.  Bar7ies,  66  Me.,  285. 

The  exercise  of  undue  influence  need  not  be  shown  by  direct 
proof;  it  may  be  inferred  from  circumstances;  but  the  circum- 
stances nmst  be  such  as  to  lead  justly  to  the  inference  that  un- 
due influence  was  employed,  and  that  the  will  did  not  express 
the  real  wishes  of  the  testator.  Ju  re  /Smif/i's  Will,  22  Wis., 
543;  Samson  vs.  Samson,  25  K  W.  Eep.,  237,  Note. 
.  The  jury  are  instructed,  that  any  influence  exercised  upon 
the  testator,  if  proved,  by  reason  of  which  his  mind  was  so  em- 
barrassed and  restrained  in  its  operations  that  he  was  not  mas- 
ter of  his  own  opinions  and  wishes,  in  respect  to  the  disposi- 
tion of  his  estate,  was  undue  influence  within  the  meaning  of 
the  law. 

Any  command  or  importunity  addressed  to  the  testator,  if 
carried  to  such  a  degree  as  to  control  or  restrain  the  free  play 
of  his  will,  judgment  or  discretion,  in  any  matter  affecting 
his  will,  was  undue  influence;  and,  if  proved,  in  this  case,  will 
render  the  will  in  question  invalid,  though  uo  force  was  used 
or  threatened.  ■         • 

^  27.  Undue  Influence  Must  Aff'ect  the  Will,  etc. — That  to~  in- 
validate a  will,  on  the  ground  of  undue  influence,  it  must  ap- 
pear, by  a  preponderance  of  the  evidence,  that  such'  undue 
influence  was  practiced  with  respect  .to  the  will,  or  as  to  some 
matter  or  circumstance  so  connected  with  it,  as  to  raise  a  pre- 
sumption that  such  undue  influence  affected  the  provisions  of 
the* will;  any  degree  of  influence  exercised  over  the  testator 
which  does  not  affect  the  making  of  the  will  or  any  of  its  pro- 
visions can  not  iuA'alidate  it.  1  Red.  6n  Wills,  625 ^ ^SaTnson 
vs.  Sa?nson,  25  N.  W.  Fwep.,  237,  Note. 

§  28.  It  Must  Destroy  Free  Ajsency. — That  the  influence 
which  will,  vitiate  a  will  on  the  ground  of  undue  influence' 
must  amount  to  such  a  degree  of  restraint  and  coercion  as  fo 
destroy  the  testator'afree  agency.  To  have  that  effect,  in  this 
case,  the  jury  must  believe,  from  the  evidence,  that  the  will 
in  question  was  Obtained  by  such  a  degree  of  restrg-int  and  co- 


CONTESTING    WILLS.  603 

ercion  upon  the  mind  and  will  of  the  deceased  as  to  destroy 
his  free  agency  in  some  matter  connected  with  the  will,  so 
that  the  will  itself  does  not  express  his  wishes  or  desires,  but 
those  of  some  other  person.  It  is  immaterial  what  arguments, 
influence  or  persuasion  were  brought  to  bear  upon  the  testator; 
provided  only,  that  in  making  his  will  he  carried  into  effect 
his  own  will  and  intention,  and  not  those  of  another. 

§  29.  Legitimate  Influence. — The  court  instructs  the  jury, 
that  any  degree  of  influence  over  another,  acquired  by  kind- 
ness and  attention,  can  never  constitute  undue  influence  within 
the  meaning  of  the  law,  and  although  the  jury  may  believe, 
from  the  evidence,  that  the  deceased,  in  making  his  will,  was 
influenced  by  the  said  A.  B.,  still,  if  the  jury  further  believe, 
from  the  evidence,  that  the  influence  which  was  so  exerted 
was  only  such  as  was  gained  over  the  deceased  by  kindness 
and  friendly  attentions  to  him,  then,  such  influence  cannot  be 
regarded,  in  law,  as  undue  influence,  and  the  verdict  should 
be  in  favor  of  the  validity  of  the  will.  1  Red.  on  "Wills,  .522 
et>  seg.;  In  re  CarroVs  Will,  50  "Wis.,  437. 

It  is  not  unlawful  for  one,  by  honest  advice  or  persuasion, 
to  induce  a  testator  to  make  a  will,  or  to  influence  him  in  the 
disposition  of  his  property  by  will.  To  vitiate  a  will  on 
account  of  undue  influence  it  must  appear,  from  the  evidence, 
that  there  was  something  wrongfully  done  amounting  to  a 
species  of  fraud,  compulsion  or  other  improj^er  conduct. 
Toe  vs.  McCord,  74  111.,  33;  Fierce  vs.  Fieixe,  38  Mich., 
412. 

It  is  not  unlawful  'for  a  person,  by  honest  intercession  and 
persuasion,  to  induce  a  will  in  favor  of  himself  or  any  other 
person;  neither  is  it  unlawful  to  induce  the  testator  to  make 
a  will  in  one's  favor  by  f«,ir  speeches  and  kind  conduct,  for  this 
does  not  amount  to  that  kindof  comjjulsion,  improper  conduct 
or  undue  influence,  which,  in  a  legal  sense,  would  render 
invalid  'the  will.  To  have  such  an  effect  it  must  amount  to  a 
fnoral  force  and  coercion,  destroying  free  agency.  It  must  not 
be  the  influence  of  affection  and  attachment,  nor  be  the  mere 
desire  to  gratify  the  wishes  of  another,  but  the  compulsion  in 
this  case,  in  order  to  render  the  will  invalid,  must  be  of  such 
a  degree  and '  character  as  to  prevent  the  exercise  of  that  dis- 


604  CONTESTING    WILLS. 

cretion  wliicli  is  essential  to  a  sound,  disposing  niiud.     Dickie 
vs.  Carter,  42  III.,  376. 

§  30.  Legitimate  Advice  or  Persuasion. — That,  in  tliis  case, 
though  the  jury  may  believe,  from  the  evidence,  that  the  said 
A.  B.  did  use  arguments  and  importunities  to  influence  the 
deceased  in  the  making  of  the  will  in  question,  still  this  fact 
will,  in  no  manner,  affect  the  validity  of  the  will,  if  the  jury 
further  believe,  from  the  evidence,  that  such  arguments  and 
importunities  did  not  deprive  the  deceased  of  his  free  agency 
or  prevent  him  from  doing  as  he  pleased  with  his  property, 
even  though  the  will  might  not  have  been  made  in  all  of  its 
provisions  as  it  is,  but  for  such  argument  and  persuasion. 

Though  the  jury  may  believe,  from  the  evidence,  that  the 
testator,  in  making  the  will  in  question,  acted  upon  tlie  sug- 
gestions and  advice,  or  under  the  influence,  of  the  said  A.  B., 
this  will  not,  in  any  manner,  affect  the  validity  of  the  will; 
provided  he  acted  freely  and  from  his  own  conviction  in  -the 
disposition  of  his  property,  though  the  provisions  of  tlie  will 
are  not  the  same  as  they  would  have  been  but  for  such  sug- 
gestions, advice  or  influence.    In  re  CarroVs  Will,  50  Wis.,  437. 

§  31.  Cannot  Question  Testator's  Motives. — The  jury  are  in- 
structed, that  if,  from  the  evidence,  they  believe  that  the 
mind  and  memory  of  the  testator  was  sufiiciently  sound  to  en- 
able him  to  know  and  understand  the  extent,  nature  and 
amount  of  his  property,  and  his  just  relations  to  the  natural 
objects  of  his  bounty,  and  to  know  and  understand  the  business 
in  which  he  was  engaged,  when  he  executed  his  will,  then  the 
jury  have  no  right  to  inquire  into  or  question  the  testator's 
motives  for  the  disposition  of  his  estate.  That  is  a  question 
under  the  absokite  dominion  of  the  testator. 

§  32.  Motives  May  be  Inquired  into,  When. — That  while  it  ig 
true  that  a  testator's  motives  for  the  disposition  of  his  estate 
are  not  matters  affecting  the  validity  of  a  will,  yet  this  rule 
only  applies  iu  cases  where  it  does  not  appear  that  the  testator 
was  of  unsound  mind,  or  possessed  of  insane  delusions,  which 
affected  his  act ;  and,  in  this  case,  if  the  jury  believe,  from  the 
evidence,  that  at,  etc.,  the  mind  of  the  deceased  was  affected 


CONTESTING    WILLS.  605 

by  any  insane  delusion  regarding,  etc.,  and  that  any  of  the 
provisions  of  the  alleged  will  were  prom])ted  by  motives  based 
upon,  or  arising  out  of  such  delusion,  this  would  render  tlie 
will  invalid. 

The  court  further  instructs  the  jury,  that  if  it  be  manifest, 
from  the  will  itself,  that  the  testator  believed  that  a  sufficient 
provision  had  been  made  outside  of  the  will  for  the  support 
of  his  wife,  and  if  it  shall  also  be  apparent  from  the  will,  that, 
in  the  making  of  the  will,  the  testator  was  influenced  by  that 
belief,  and  that  he  would  have  provided  differently  for  her 
had  he  not  entertained  such  belief,  and  if  the  jury  furtlier 
find,  from  the  evidence,  that  such  belief  was  unfounded,  and 
had,  in  no  manner,  been  reasonably  evidenced  to  him,  then  the 
jury  have  a  right  and  ought  to  take  these  things  into  con- 
sideration in  determining  whether  the  testator  was  of  sound 
mind  when  he  signed  his  will. 

§  33.  Unlawful  Cohabitation. — The  jury  are  instructed,  that 
illicit  sexual  intercourse  between  a  testator  and  his  devisee, 
however  immoral  or  illegal  it  may  be,  does  not  necessarily 
render  the  will  of  the  testator  invalid;  nor  could  that  circum- 
stance, in  any  manner,  affect  the  validity  of  the  will  if  it  was 
made  by  him  with  a  sound  and  disposing  mind  and  memory, 
and  as  a  free  agent.  1  Red.  on  "Wills,  531-533;  Dean  vs. 
Negley,  41  Penn.  St.,  312;  Eclert  vs.  Floiorij,  43  Penn.  St.,  46. 

The  jury  are  instructed,  that  if  they  believe,  from  the  evi- 
dence, that  the  testator  and  the  said  Mrs.  P.,  before  and  at  the 
time  the  will  was  made,  were  living  in  unlawful  cohabitation, 
then  the  law  will  presume  that  undue  influence  was  used  by 
her  over  the  deceased  in  the  making  of  the  will  in  question,  and 
the  burden  of  the  proof  is  upon  her  to  show  that  no  such 
undue  influence  was  used.  Leighton  vs.  Orr,  44  Iowa,  679;  1 
Red.  on  Wills,  531-533;   Wallace  vs.  Harris,  32  Mich.,  380. 

§  34.  Groundless  Fears. — If  the  jnry  believe,  from  the  evi- 
dence in  this  case,  that  the  testator  A.  B.,  at  the  time  of  the 
making  of  the  will  in  question,  had  attained  extreme  old  age, 
that  his  nervous  system  had  become  more  than  ordinarily  sen- 
sitive, and  that  he  had  become  timid  and  fearful,  and  that  he 
was  in  constant  dread  of  injury  from  the  said  E.  B.^  then,  al- 


6U6  CONTESTING    WILLS. 

though  the  jury  may  believe,  from  the  evidence,  that  no  real 
cause  existed  for  the  said  testator  to  be  ajDprehensive  of  evil, 
or  to  fear  injury  from  the  said  E.  B.,  and  that  such  apprehen- 
sions and  fear  proceeded  from  a  morbid  delusion  of  the  testa- 
tor, still,  if  the  jury  believe,  from  the  evidence,  that  said  will 
was  the  result  or  offspring  of  such  delusion,  and  does  not  ex- 
press the  real  wishes  and  intentions  of  the  testator,  then  the 
jury  should  Und  that  the  said  paper  is  not  the  will  of  the  said 
A.  B. 

If  the  jury  believe,  from  the  evidence  in  this  case,  that  the 
said  A.  B.,  at  the  time  of  the  executing  of  the  said  paper 
offei'ed  in  evidence  as  his  last  will  and  testament,  was  greatly 
advanced  in  age,  in  feeble  health,  and  laboring  under  the  fear 
of  bodily  hurt  {or  impriscnwient)  at  the  hands  of  the  said  E, 
B.,  and  that  the  said  paper  was  the  result  or  offspring  of  such 
fears,  and  was  not  the  result  of  his  own  free  will,  then  the 
jury  should  find  that  the  said  paper  is  not  the  will  of  the  said 
A.  B. 

§  35.  Provisions  of  the  Will  May  be  Considered. — That  in 
determining  the  question  of  the  validity  of  this  will  you  have 
the  right,  and  it  is  your  duty,  to  take  into  consideration  the 
provisions  of  the  will  itself,  in  connection  with  all  the  other 
evidence  in  the  case  bearing  upon  the  question,  whether  the 
said  A.  B.  was  coerced  by  threats  or  fear  of  bodily  harm  into 
making  the  will  in  question,  or  whether  he,  in  his  lifetime,  of 
his  own  free  will  and  volition,  made  and  executed  the  said 
will  so  that  it  expresses  his  own  wishes  and  intention. 

§  36.  On  Appeal  from  Probate  Court. — In  Fraser  vs.  Jenni- 
son,  42  Mich.,  206,  3  K  W.  Rep.,  576,  the  following  instruc- 
tions were  given  for  the  proponents  on  the  trial  of  an  appeal 
from  the  probate  court. 

"  Gentlemen  of  the  jury:  you  are  called  upon,  in  this  case, 
to  determine  whether  Alexander  D.  Fraser,  on  the  seventeenth 
of  May,  1877,  possessed  sufficient  mental  capacity  to  make  a 
will. 

"A  paper  has  been  offered  in  evidence,  which  the  propon- 
ents claim  to  be  his  last  will  and  testament.  If  you  believe  the 
testimonj'  of  the  subscribing  witnesses,  the  paper  was  executed 


CONTESTING    WILLS.  607 

in  accordauce  willi  the  laws  of  this  state;  but  conceding;  this 
to  be  true,  it  is  claimed  on  behalf  of  the  contestants  that  the 
paper  is  void,  because  Mr.  Fraser,  at  the  time  of  its  execution, 
did  not  possess  sufficient  mental  vigor  or  capacity  to  compre- 
hend and  realize  what  he  was  doing.  This  is  the  question  of 
fact,  or  the  principal  question  of  fact,  you  must  determine 
from  the  evidence  that  has  been  admitted.  You  must  be 
careful,  gentlemen  of  the  jury,  to  conJine  3'our  attention  to  the 
evidence  introduced  and  not  permit  your  minds  to  be  influ- 
enced by  any  statements  made  in  your  presence  or  hearing  by 
the  counsel  in  this  case,  as  to  matters  that  were  not  permitted 
to  go  in  evidence. 

"  The  rule,  gentlemen,  stated  by  the  weight  of  authority, 
undoubtedly  is,  that  a  less  degree  of  mind  is  required  to  exe- 
cute a  will  than  a  contract.  Although  the  testator  must  un- 
derstand substantially  the  nature  of  the  act,  the  extent  of  his 
property,  his  relations  to  others  who  may  or  ought  to  be  the 
object  of  his  bounty,  and  the  scope  and  bearing  of  the  pro- 
visions of  his  will,  and  must  have  sufficiently  active  memory 
to  collect  in  his  mind,  without  prompting,  the  elements  of  the 
business  to  be  transacted,  and  to  hold  them  in  his  mind  a  suf- 
ficient length  of  time  to  perceive,  at  least,  their  obvious  rela- 
tions to  each  other,  and  be  able  to  form  some  rational  judg- 
ment in  reference  to  them,  yet  he  need  not  have  the  same 
perfect  and  complete  understanding  and  appreciation  of  any  of 
these  matters,  in  all  their  bearings,  as  a  person  in  sound  and 
vigorous  health  of  body  and  mind  would  have,  nor  is  he  re- 
quired to  know  the  precise  legal  effect  of  every  provision  con- 
tained in  his  will. 

"To  use  still  another  form  of  expression,  gentlemen,  the 
will  is  not  valid  unless  the  person  making  it  not  only  intends, 
of  his  own  free  will,  to  make  such  a  disposition,  but  has  capac- 
ity to  know  what  he  is  doing,  or  understanding  to  whom  he 
is  giving  his  property,  in  what  proportions,  and  who  he  is  de- 
priving of  it,  as  his  heirs  or  devisees  under  the  will  he  makes. 
When  a  man  has  mind  enough  to  know  and  appreciate  the 
natural  object  of  his  bounty,  and  the  character  and  effect  of 
the  disposition  of  the  will,  then  he  has  mind  sufficiently  sound 
to  enable  him  to  make  a  valid  will. 


608  CONTESTING    WILLS. 

""Witli  tliese  instructions  in  your  mind,  weigh  the  testimony 
of  all  the  witnesses.  Many  of  these  were  persons  who  spoke 
from  actual  knowledge  of  the  deceased.  Consider  the  testi- 
mony of  those  as  well  as  that  of  the  experts,  and  give  to  eacb 
and  every  one  of  them  such  weight  as  you  may  deem  proper. 
This  question  of  capacity  is  entirely  and  exclusively  for  your 
disposition  and  decision. 

"It  rests  upon  the  proponents  to  satisfy  you,  by  a  preponder- 
ance of  proofs,  that  the  deceased  was  of  sound  mind  when  the 
paper  was  executed.  As  bearing  upon  the  state  of  Mr. 
Fraser's  mind,  his  declarations — that  is,  what  he  said  to  persons 
— have  been  admitted,  and  are  to  be  construed  by  you  for  this 
purpose  only,  not  as  proving  any  facts  stated  in  the  declara- 
tion. 

"If,  under  these  instructions,  you  reach  the  conclusion  that 
A.  D.  Fraser  possessed  sufficient  mental  capacity  on  the  17th 
of  May,  1877,  to  make  his  will,  your  verdict  should  be  for  the 
proponents.  If,  on  the  other  hand,  you  determine  he  did  not 
possess  this  mental  capacity,  your  verdict  should  be  for  the 
contestants." 

§  37.  On  Contest  in  Chancery. — In  American  Bible  SoG.  vs. 
Price,  115  111.,  623,  5  K  E.  Eep.,  126,  the  following  instruc- 
tions, as  to  testamentary  capacity,  given  for  the  proponents, 
were  approved : 

"  The  court  instructs  the  Jury,  that  if  they  believe,  from  the 
evidence,  that  Isaac  Foreman,  at  the  time  he  signed  the  paper 
in  dispute,  had  mind  and  memory  sufficient  to  transact  his  or- 
dinary business,  and  that,  when  he  made  the  will,  he  knew  and 
understood  the  business  he  was  engaged  in,  then  the  jury 
should  find  said  paper  writing  to  be  the  will  of  said  Foreman. 

"  The  court  instructs  the  jury,  that  the  owner  of  property 
who  has  ca]:)acity  to  atten  1  to  his  ordinary  business,  has  the 
lawful  right  to  dispose  of  it,  either  by  deed  or  by  will,  as  he 
may  choose,  and  it  requires  no  greater  mental  capacity  to 
make  a  valid  will  than  to  make  a  valid  deed.  And  if  such  an 
owner  chooses  to  disinherit  his  heir,  or  leave  his  property  to 
some  charitable  object,  he  has  a  legal  right  to  do  so,  and  such 
disposition  of  his  property  is  valid,  whether  it  be  reasonable  or 
unreasonable,  just  or  unjust;  and  the  reasonableness  or  jus- 


CONTESTING  "WILLS.  609 

tice  or  propriety  of  the  will  are  not  qnestions  for  the  jury  to 
]iass  upon.  If,  therefore,  the  jury  believe,  from  the  evidence, 
that  when  he  executed  the  pai;er  in  dispute,  Isaac  Foreman 
had  capacity  enough  to  attend  to  his  ordinary  businees,  and 
to  know  and  understand  the  business  he  was  engaged  in,  then 
he  had  the  right  and  the  capacity  to  make  such  a  will,  and  tlie 
jury  should  find  the  i)aper  in  dispute  to  be  the  will  of  said 
Foreman.  The  court  instructs  the  jury,  that  even  if  they 
find,  from  the  evidence,  that  Isaac  Foreman  had,  during  some 
portion  of  liis  life,  eccentricities  or  peculiarities,  or  even  an 
insane  delusion  or  partial  insanity  on  the  subject  of  religion, 
or  masonry,  or  education,  or  any  other  subject,  yet  if  they 
find,  from  the  evidence,  that  at  the  time  he  m^de  the  will  in 
question,  he  had  sufficient  mind  and  memory  to  understand 
his  ordinary  business,  and  that  he  knew  and  understood  the 
business  he  was  engaged  in,  and  intended  to  make  such  a  will, 
the  jury  should  find  such  will  to  be  the  will  of  said  Isaac 
Foreman. 

"The  court  instructs  the  jury,  that  eccentricities  or  pecul- 
iarities, or  radical  or  extreme  notions  or  opinions  upon  re- 
ligion, colleges,  education,  or  masonry  and  secret  societies,  will 
not  necessarily  render  a  man  incapable  of  making  a  will,  and 
if  the  jury  find  that,  in  making  the  will  in  dispute,  Isaac  Fore- 
man had  sufficient  mind  and  memory  to  understand  the  busi- 
ness he  was  engaged  in  when  he  made  the  will,  then  the  jury 
should  find  in  favor  of  said  will,  though  said  Foreman  may 
have  had  eccentricities  and  peculiarities,  or  extreme  notions 
and  opinions  upon  religion,  colleges,  education,  or  masonry  or 
secret  societies. 

"The  court  instructs  the  jury,  that,  in  order  to  make  a  valid 
will,  it  is  only  necessary  that  a  man  shall  have  mental  capacity 
sufficient  for  the  trans;!ction  of  the  ordinary  affairs  of  life, 
and  possessing  this,  though  he  may  be  feeble  in  mind  and 
body  from  sickness  or  old  age,  he  has  the  legal  right  to  dis- 
pose of  his  property  just  as  he  pleases,  without  consulting 
either  his  family  or  his  acquaintances.  And  if  the  jury  believe, 
from  the  evidence,  that  when  he  executed  the  ]^a])er  in  dis- 
pute, Isaac  Foreman  knew  what  lie  was  doing,  and  executed 
it  as  his  will,  understanding  its  nature  and  effect,  and  that,  at 
39 


610  CONTESTIXG    WILLS. 

the  time,  lie  had  sufficient  mind  and  memory  to  transact  his 
ordinaiy  business,  such  as  buying  or  selling  or  renting  prop- 
erty, or  collecting  or  leaving  out  nKmcy  or  settling  accounts, 
tlien  the  jury  should  find  the  paj)er  in  dispute  to  be  the  last 
will  and  testament  of  said  Isaac  Foreman." 

On  the  part  of  the  contestants,  the  following  instructions 
were  given  and  approved: 

"If  the  jury  believe,  from  the  evidence,  that,  although  Isaac 
Foreman  had  sufficient  capacity  to  attend  to  the  ordinary  busi- 
ness atfairs  of  life,  yet  that,  with  regard  to  subjects  connected 
with  the  testamentary  disposition  and  disti'ibution  of  his  prop- 
erty and  the  natural  objects  of  his  bounty,  he  was  insane,  and 
that  while  laboring  under  such  insanity  he  made  the  will  in 
question,  and  that  in  making  it  he  was  so  far  influenced  or  con- 
trolled by  such  insanity  as  to  be  unable  rationally  to  compre- 
hend the  nature  and  effect  of  the  provisions  of  the  will,  and 
was  thereby  led  to  make  the  will  as  he  did,  then  the  jury 
must  find  the  will  not  to  be  the  will  of  the  said  Isaac 
Foreman. 

"An  insane  delusion  is  a  fixed  and  settled  belief  in  facts  not 
existing,  which  no  rational  person  would  believe;  such  delusion 
may  sometimes  exist  as  to  one  or  more  subjects;  and  it  the 
jury  believe,  from  the  evidence  in  this  case,  that  Isaac  Fore- 
man was  laboring  under  such  insane  delusions  upon  subjects 
connected  with  the  testamentary  disposition  of  his  iirc)perty, 
and  the  natural  objects  of  his  bounty,  when  he  made  the  will 
in  question,  and  was,  thereby,  rendered  incompetent  to  com- 
prehend, rationally,  the  nature  and  effects  <;f  the  act,  and  that 
but  for  tuch  delusions  he  would  not  have  made  the  will  as  he 
did,  then  the  jury  should  find  against  the  validity  of  the  will." 


CHAPTER  XLIX. 

WOEK,  LAi30E  AND  SERVICES. 


Sec.     1.  Implied  contract. 

2.  Promise  to  pay  implied,  when. 

3.  Professional  service,  price  implied. 

4.  Warranty  of  skill  and  care  implied. 

5.  Ordinary  skill  defined. 

6.  Acceptance  of  work. 

7.  Usual  8'oing'  wages  implied,  when. 

8.  Not  bound  by  acceptance,  when. 

ENTIRE  CONTRACT. 

9.  Fulfillment  prevented  by  defendant. 

10.  Substantial  performance. 

11.  Entire  contract — Leaving  without  good  cause. 

12.  Payment  a  condition  precedent. 

13.  Burden  of  proof. 

14.  Pretext  for  leaving. 

15.  Must  be  substantial  cause  for  leaving,  etc. 

16.  Entire  contract — Rule  of  damages. 

17.  Mast  demean  himself  respectfully. 

18.  Leaving  on  account  of  sickness. 

19.  Discharged  or  compelled  to  leave,  etc. 

20.  Distharged  without  good  cause — Measure  of  damages. 

21.  Workmen  must  avoid  unnecessary  damages. 

22.  Services  by  member  of  the  family. 

23.  Stranger  a  member  of  the  family. 

24.  Services  of  a  child. 

25.  When  promise  may  be  inferred. 

26.  Emancipation  of  minor. 

27.  Minor  can  only  disaffirm  contract  after  majority. 

28.  Gratuitous  labor. 

29.  Agreed  price  must  govern. 

30.  Contract  presumed  to  continue,  when. 

31.  Evidence  of  reasonable  worth. 

32.  Burden  of  proof  of  payment. 

33.  Offer  to  compromise. 

34.  Effect  of  pleading  set-off. 

35.  Written  contract  varied  by  paroL 

(611) 


612  WOKK,    LABOR    AND    SERVICES. 

§  1.  Implied  Contract. — The  court  instructs  the  jury,  that 
when  a  contract  lor  work  and  labor  is  entered  into,  and  the 
terms  agreed  upon  by  the  parties,  with  t1ie  understanding  that 
it  shall  be  reduced  to  writing,  and  one  of  the  parties  to  the 
agreement  enters  upon  the  pei-formance  of  it,  without  objec- 
tion from  the  other  party,  the  contract  in  all  its  terms  will  be 
as  binding  as  if  it  had  been  reduced  to  writing.  Miller  vs. 
McMaimis,  57  111.,  126. 

§  2.  Promise  to  Pay  Implied,  When. — While  one  person  can- 
not make  another  his  debtor  without  the  consent  of  the  latter, 
or  recover  for  services  rendered  for  another,  without  a  request 
expressed  or  implied,  yet,  if  one  stands  by  and  sees  another 
doing  work  for  him,  beneficial  in  its  nature,  and  overlooks  it 
as  it  progresses,  and  does  not  interfere  to  prevent  or  forbid  it 
but  appropriates  such  labor  to  his  own  use,  then,  in  the  ab- 
sence of  a  special  contract,  a  request  will  be  implied,  and  the 
person  for  whom  the  work  has  been  done  will  be  liable  to  pay 
for  the  work  what  the  same  was  reasonably  worth,  unless  it 
expressly  appears,  from  the  evidence,  that  it  was  done  as  a 
gift  or  gratuity.  1  Pars,  on  Cont.,  445;  De  Wolf  vs.  City  of 
Chicago^  2f3  111.,  44-5;   Allen  vs.  Richmond,  etc.,  41  Mo.,  302. 

The  court  instructs  you,  that  when  one  person  labors  for 
another  with  his  knowledge  and  consent,  and  the  latter  volun- 
tarily takes  the  benefit  of  such  labor,  then  the  law  will  presume 
that  the  laborer  is  to  be  paid  for  his  labor,  unless  the  contrary' 
is  shown  by  the  evidence,  and  if  no  special  contract  is  pi-oved, 
fixing  the  price,  then  the  laborer  is  entitled  to  have  what  his 
services  are  reasonably  worth.  Trustees  of  Farmlngton,  etc., 
vs.  Allen,  14  Mass.,  172. 

Work  and  labor,  if  done  at  the  request  of  the  promisor, 
are  a  good  consideration  for  a  promise  to  pay  for  the  same; 
and  if  the  evidence  shows  that  work  and  labor  have  been  done 
and  performed  for  another,  with  his  knowledge  and  consent, 
or  if  he  has  voluntarily  accepted  and  received  the  benefit 
resulting  from  such  work  and  labor,  then,  unless  there  is  evi- 
dence to  the  contrary,  a  request  to  perform  it  may  be  inferred 
from  these  facts. 

When  work  and  labor  are  done  and  performed  for  the 
benefit  of  another,  with  his  knowledge  and  consent,  and  he 


"WOKK,    LADOE    AND    SEKVICES.  613 

receives  the  benefit  arising  therefrom,  then  the  law  will  pre- 
sume a  promise  on  his  part  to  pay  for  the  same;  unless  it 
appears,  from  all  the  evidence  in  the  case,  that  such  work  and 
labor  were  done  under  a  special  contract,  or  as  a  gratuity  or  a 
gift.     O'Connor  vs.  Bechwith,4:l  Mich.,  C57. 

Where  no  Price  is  Fixed. — If  the  jury  believe,  from  the 
evidence,  that  the  plaintiff  performed  labor  and  services  for 
the  defendant  at  his  request,  and  that  no  price  was  fixed  or 
agreed  upon,  then  the  law  will  imply  a  promise  from  the 
defendant,  to  pay  the  plaintiff,  for  such  work  and  labor,  what 
the  same  are  reasonably  worth. 

§  3.  Professional  Sei'vices,  Price  Impliefl. — If  the  jury  be- 
lieve, from  the  evidence,  that  the  plaintiff  rendered  the  pro- 
fessional services  to  defendant,  or  to  his  family,  at  his  request, 
as  claimed  by  the  plaintiff,  then  the  plaintiff  is  entitled  to 
recover  what  the  jury  may  believe,  from  the  evidence,  such 
services  were  reasonably  worth,  according  to  the  usual  charges 
of  the  (niedicaT)  profession  in  the  vicinity,  where  the  plaintiff' 
lives,  if  the  same  is  shown  by  the  evidence,  after  deducting 
what  payments,  if  any,  the  jury  may  believe,  from  the  evi- 
dence, have  been  made  therefor. 

§  4.  Warranty  of  Skill  and  Care  Implied. — If  the  jury  be- 
lieve, from  the  evidence,  that  the  defendant  employed  the 
plaintiff  to  thresh  his  grain  at  an  agreed  price,  then  the  plaint- 
iff was  bound  in  law  to  do  the  work  in  a  workmanlike  man- 
ner. And  should  the  jury  further  believe,  from  the  evidence, 
that  the  ]  ai  itiff,  through  negligence,  want  of  care  or  skill, 
performed  tlie  work  in  a  wasteful  and  slovenly  and  unwork- 
manlike manner,  and  tliat  the  defendant  was  thereby  damaged 
in  an  amount  equal  to,  or  greater  than,  the  sum  claimed  for 
the  threshing,  then  the  jury  should  tind  for  the  defendant. 

If  you  believe,  from  the  evidence,  that  the  plaintiffs  were 
the  owners  of,  or  in  possession  of,  a  threshing  machine,  which 
they  were  using  about  the  country  for  hire,  and  that  the  de- 
fendant employed  them  to  thresh  his  grain,  at  an  agreed 
price,  and  that  the  plaintiffs  knowingly  undertook  and  per- 
formed such  threshinfi::  with  a  machine  defective  and  out  of 


614  ■WORK,    LACOK    AND    SERVICES. 

repair,  and  that  the  defendant  was  thereby  damaged,  then  the 
defendant  has  the  right  to  offset  the  amount  of  such  damages 
against  the  plaintiffs'  claitn  for  tlireshing.  Garfield  vs.  Huls, 
54  111.,  427. 

When  a  person  engages  to  work  for  another,  he  impliedly 
contracts  that  he  has  a  reasonable  amount  of  skill  lor  the 
employment,  and  that  he  will  use  it,  as  well  as  reasonable  care 
and  diligence;  and  a  failure  to  do  so,  to  the  injury  of  his 
employer,  will  prevent  him  from  receiving  the  full  contract 
price.  The  employer  may  recoup  or  set  off  against  the  con- 
tract price  the  damages  he  may  sustain  for  want  of  reasonable 
skill,  or  the  observance  of  reasonable  care  and  diligence  in  the 
performance  of  the  work,  if  the  same  are  proved  by  the  evi- 
dence.    2  Pars,  on  Cont.,  54;  Parlter  vs.  Piatt,  74  111.,  430. 

"When  a  person  holds  himself  out  to  the  public,  or  to  those 
hiring  him,  as  a  person  having  the  requisite  experience  and 
skill  to  perform  any  work  or  service  requiring  special  knowl- 
edge or  skill,  he  impliedly  warrants  that  he  possesses  such 
knowledge  as  will  enable  him  to  do  the  work  and  perform  the 
service,  in  a  workmanlike  and  in  an  ordinarily  skillful  manner. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  repre- 
sented to  the  defendant  that  he  was  experienced  and  skilled  in 
the  business  of  {maldjig  cheese),  and  that  he  was  employed  by 
the  defendants  in  that  business,  then  there  was  an  implied  war- 
ranty on  his  part,  that  his  work  should  be  done  in  an  ordi- 
narily good  and  workmanlike  manner;  and  if  you  further  be- 
lieve, from  the  evidence,  that  the  plaintiff  was  not  skilled  or 
experienced  in  said  business,  and  did  not  do  his  work  in  an 
ordinarily  good  and  workmanlike  manner,  then  the  defendant 
had  a  right  to  discharge  him  from  such  employment.  Park- 
ham\&.  Daniel,  56  Ala.,  604. 

If  you  believe,  from  the  evidence,  that  some  time  on  or 
about,  etc.,  the  defendant  employed  the  plaintiff  to  manufact- 
ure {cheese)  for  him  during  the  then  succeeding  summer,  and 
that  he  commenced  to  work  under  that  contract,  and  that  he 
did  not  do  his  work  in  an  ordinarily  good,  workmanlike  and 
skillful  manner,  and  that  the  defendant  was  thereby  damaged 
to  the  extent  of  the  value  of  such  services,  then  the  plaintiff 
is  not  entitled  to  recover  for  any  jiart  of  such  labor;  provided, 
you  further  believe,  from  the  evidence,  tliat  the  defendant  dis- 


■^'ORK,    LABOR   AND    SERVICES.  G15 

cliarged  the  plaintiff  witliin  a  reasonable  time  after  discovering 
the  manner  in  which  such  work  was  done. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  wa 
employed  by  defendant  to  superintend  {the  manufactm'e  of 
cheese)  for  him,  and  that  he  worked  for  the  defendant  at  that 
business,  for  a  time,  still,  if  you  further  believe,  from  the  evi- 
dence, that  his  work  was  not  done  in  an  ordinarily  skillful  and 
workmanlike  manner,  and  that  the  defendant  was  thereby  dam- 
aged, and  that  during  the  progress  of  the  work  the  defendant 
did  not,  and  by  the  exercise  of  reasonable  care  in  that  behalf 
could  not,  know  of  the  defective  manner  in  which  said  work 
was  done,  then  you  should  set  off  the  amount  of  such  damage 
against  the  value  of  the  work  so  done  by  the  plaintiff. 

§  5.  Ordinary  Skill  Defined. — The  jury  are  instructed,  that 
what  is  meant  by  ordinary  skill,  in  these  instructions,  means 
that  degree  of  skill  which  men  engaged  in  that  particular  art 
or  business  usually  employ;  not  that  which  belongs  to  a  few 
men  only  of  extraordinary  endowment  and  capacities,  but  such 
as  is  generally  possessed  by  men  engaged  in  the  same  business. 
Wmigh  vs.  ShimJc,  20  Penn.  St.,  130. 

§  6.  Acceptance  of  Work. — If  the  jury  believe,  from  the  evi- 
dence, that  the  defendant  inspected  the  work  in  question,  and 
knew  its  character  and  quality,  and,  with  such  knowledge,  ac- 
ce]ited  the  work  done  and  materials  furnished  by  the  plaintiff 
as  in  com])liance  with  and  a  full  performance  of  the  contract 
on  ]ilaintift''s  part,  then  the  plaintiff  is  entitled  to  recover 
whatever,  if  anything,  the  jury  shall  find,  from  the  evidence, 
is  unpaid  upon  the  contract  price.  /Strawn  vs.  Cogsivell,  28 
111.,  457. 

You  are  instructed,  that  no  particular  words  or  form  is  nec- 
essary to  amount  to  an  acceptance  of  work  done  or  material 
furnished.  Such  acceptance  may  be  by  words  or  acts,  if  they 
are  such  as  show  that  the  party  knew  the  character  and  qual- 
ity of  the  work  and  material,  and  was  satislied  therewith. 

§  7.  Usual  Going  "Wages  Imi)licd,  When. — That  when  a  per- 
son employs  a  person  to  labor  for  him,  without  any  contract 
as  to  price,  and,  with  knowledge  of  all  the  facts,  accepts  the 


616  WOKE,    LALOK    AKD    SEUVICES. 

services  without  complaint,  he  will  be  presumed  to  have  con- 
tracted to  pay  at  the  usual  and  going  price  for  such  services; 
and  the  fact,  if  proven,  that  the  servant  did  not  perform  his 
work  well,  wall  not  excuse  the  employer  from  paying  such 
price.  If  he  desires  to  relieve  himself  from  such  liabilityj  the 
employer  ought  to  discharge  the  servant. 

§  8.  Not  Bound  by  Acceptance,  Wlien. — The  court  instructs 
the  jury,  that  when  a  party  accepts  work  done  for  him,  or 
material  furnished,  he  does  not  thereby  waive  objections  to 
any  latent  defects  that  may  be  in  the  work  or  in  the  mate- 
rials, and  which,  at  the  time  of  acceptance,  are  not  open  to 
inspection  and  are  not  known  to  him.  Korf  v&.  Lull,  7U  111., 
420 ;   Garfield  vs.  Euls,  54  111.,  427. 

Though  you  may  believe,  from  the  evidence,  that  the 
plaintiff  performed  the  work  in  question,  and  that  the  defend- 
ant saw  the  work,  from  time  to  time,  as  it  was  being  done,  and 
made  no  complaint  in  reference  thereto,  but  accepted  the  work 
as  done,  still,  if  you  further  believe,  from  the  evidence,  that 
the  defendant  was  not  a  judge  of  such  work,  or  that  the  alleged 
defects,  if  they  existed,  could  not  have  bsen  seen  by  him,  by 
reasonable  diligence  on  his  part,  and  were  not  seen  by  him, 
then  he  would  not  be  estopped  from  showing  the  defective 
character  of  the  work,  if  such  defects  exist;  and  if  you  further 
believe,  from  the  evidence,  that  the  work  was  not  done  in  a 
good  and  workmanlike  manner,  by  reason  of  the  defective 
machinery,  or  of  the  careless  manner  of  working  the  same, 
and  that  the  defendant  was  damaged  thereby,  then  you  may 
deduct  the  amount  of  such  damage  from  the  price  of  the  work, 
as  found  by  you  under  the  evidence. 

ENTIRE    CONTEACT. 

§  9.  Fulfillment  Prevented  by  Defendant. — If  the  jury  believe, 
from  the  evidence,  that  the  plaintiff  has  furnished  the  mate- 
rial and  completed  the  building,  mentioned  in  the  contract,  in 
a  good  and  workmanlike  manner,  then,  although  the  jury  may 
further  believe  that  the  same  was  not  completed  within  the 
time  limited  in  the  contract  in  that  behalf,  still,  if  the  jury 
further  believe,  from  the  evidence,  that  the  delay  complained 


AVOKK,    LAliOK    AND    SERVICES.  617 

of  wds  caused  by  tlio  defendant  himself,  and  without  fault  on 
the  [jart  of  the  plaintiff,  then  the  plaintiff'  is  entitled  to  re- 
cover the  balance,  if  any,  unpaid  upon  the  contract  price,  witli 
{six)  per  cent,  interest  thereon,  from  the  time  the  same  was 
payable  by  the  terms  of  the  contract.  Straion  vs.  Cogswells 
28  111.,  457. 

Although  you  should  believe,  from  the  evidence,  that  the 
plaintiff  did  nut  fully  and  in  all  particulars  build  and  furnish 
the  liouse  according  to  the  contract,  still,  if  you  further 
believe,  from  the  evidence,  that  he  substantially  completed  it, 
leaving  but  little  to  be  done,  and  so  far  {lerformed  his  contract 
as  to  erect  a  house  useful  to  the  defendant,  and  that  defend- 
ant has  taken  possession  and  is  using  the  same,  then  the  jury 
should  allow  to  the  plaintiff  the  contract  price  for  building 
the  same,  less  such  amount  as  it  would  take  to  construct  these 
parts  omitted  or  neglected  to  be  built  by  the  plaintiff.  Gold- 
smith vs.  Hcmd,  26  Ohio  St.,  101. 

If  you  believe,  from  the  evidence,  that  the  plaintiff,  by  the 
consent  of  the  defendant  or  by  an  agreement  with  him  during 
the  progress  of  the  work,  constructed  some  parts  of  the  build- 
ing of  materials  different  from  that  required  by  the  written 
agreement,  or  of  a  size  and  form  different  from  tliat  mentioned 
in  the  written  agreement,  still  if  you  further  believe,  from 
the  evidence,  that  the  building  as  constructed  was  useful  to 
the  defendant,  then  the  plaintiff"  is  entitled  to  recover  the  con- 
tract price  for  erecting  said  building,  less  the  difference  in 
value  of  these  parts  so  constructed,  and  their  vahie,  if  they 
had  been  constructed  according  to  the  written  contract,  credit- 
ing the  defendant,  of  course,  with  such  amounts  as  you  find, 
from  the  evidence,  the  defendant  has  paid  upon  the  contract. 
Goldsmith  vs.  Hand,  26  Ohio  St.,  101;  White  vs.  Oliver,  26 
Me.,  92. 

You  are  instructed,  that  changes  and  alterations  in  the  plan 
and  design  of  the  work  in  question  are  authorized  to  be  made 
hj  defendant  by  the  terms  of  the  written  contract  introduced 
in  evidence  without  in  any  manner  invalidating  the  contract, 
except  in  so  far  as  it  should  be  so  changed  or  altered:  and  if 
you  believe,  from  the  evidence,  that  any  change  or  alterations 
were  ordered  during  the  progress  of  the  work  by  the  defend- 
ant or  by  any  one  authorized  by  hira  to  order  tliem,  and  that 


618  WORK,    LABOR    AND    SERVICES. 

sucli  alterations  and  changes  were  made  by  the  plaintiff,  and 
that  they  required  additional  labor  or  material  to  be  furnished 
by  the  plaintiff,  then  he  is  entitled  to  receive  for  such  addi- 
tional labor  what  the  same  was  reasonably  worth. 

Although  you  may  believe,  from  the  evidence,  that  during 
the  time  the  plaintiff  was  in  the  employ  of  defendant  he  did 
not  turn  out  good  work,  still,  if  you  further  believe,  from 
the  evidence,  that  plaintiff's  failure  to  turn  out  good  work 
was  owing  to  no  fault  of  his,  but  was  owing  to  defendant's 
neglect  to  furnish  proper  tools,  stock  or  machinery,  after 
notice  by  plaintiff  to  furnish  the  same,  if  such  notice  has 
been  proved,  then  such  failure  to  turn  out  good  work  would 
not  alone  justify  defendant  in  discharging  the  plaintiff,  nor 
affect  the  plaintiff's  right  to  recover  in  this  suit;  provided 
you  find  that  defendant  did  discharge  the  plaintiff  for  such 
reason  before  the  expiration  of  the  time  for  which  he  was 
hired,  and  that  plaintiff  has  sustained  damage  thereby. 

§  10.  Substantial  Performance. — The  rule  of  law  is,  that 
when  a  job  of  work  is  actually  and  substantially  performed, 
though  not  in  exact  conformity  with  the  contract  in  immaterial 
particulars,  or  with  variations  assented  to  by  the  employer, 
or  when  the  employer  accepts  the  work  as  and  for  a  com- 
pleted performance  of  the  contract,  then  the  workman  may 
recover  for  his  work  and  labor  what  the  same  are  reasonably 
worth.  White  vs.  Hewitt,  1  E.  D.  Smith,  895;  Dermott  vs. 
Jones,  23  How.,  220;  Diitro  vs.  Walter,  31  Mo.,  516. 

The  law  is,  that  when  a  party  makes  a  special  agreement  to 
do  certain  work  in  a  particular  manner,  within  a  fixed  time, 
and  he  fails  to  do  it  in  the  manner  or  within  the  time  agreed, 
yet,  if  he  acts  in  good  faith,  and  the  other  party  receives  any 
benefit  from  the  work  which  is  done,  the  law  implies  a  prom- 
ise by  him  to  pay  such  sum  therefor  as  the  benefit  which  he 
receives  is  reasonab'y  worth  to  him.  Snow  vs.  Ware,  13  Met., 
42;  Yeazie  vs.  Bangor,  51  Me.,  509;  Blood  vs.  Enos,  12  Yt, 
625;  ParTcs  vs.  Steed,  1  Lea  (Tenn.),  206. 

§   11.     Entire   Contract — Leaving    witliont    Good    Cause. — The 

court  instructs  the  jury,  that  where  one  is  hired  for  a  definite 
time  and  leaves  his  employer  against  his  employer's  consent, 


WORK,    LAUOR   AND    SKRVICES.  C19 

and  witliont  his  fault,  before  sncli  time  has  expn-cd,  he  can 
recover  nothing  for  the  work  he  has  di>ne;  and  this  rule  holds 
as  well  where  the  wages  are  coni[)uted  by  the  n-onth,  oi"  week, 
as  where  they  are  computed  for  a  gross  sum  for  the  wliole 
time.  The  contract  in  such  cases  is  entire,  and  the  perform- 
ance of  the  whole  service  is  a  condition  ]irecedent  to  the 
laborer's  right  of  recovery.  2  Pars,  on  Cont.,  SO;  Miller  vs. 
Goddard,  34  Me.,  102;  Beabvs.  Jloor,  19  Johns.,  337;  Webster 
vs.  Wade,  19  Cal.,  291. 

The  court  instructs  3'ou,  that  a  contract  to  work  for  a  given 
number  of  months,  at  a  fixed  price  per  month,  is  an  entire 
contract  for  the  whole  number  of  months  agreed  upon,  and 
when  a  person  agrees  to  work  for  another  for  a  given  number 
of  months,  and  to  perform  such  services  as  are  incident  to  his 
employment,  at  a  fixed  price  per  month,  if  he  quits  such  serv- 
ice before  the  expiration  of  the  number  of  months  agreed 
upon,  witliont  a  good  and  sutficient  cause,  and  without  the 
consent  of  his  employer,  he  cannot  recover  for  the  work  which 
he  has  already  performed.  Ilensell  vs.  Errioksoii,  28  111.,  257; 
2  Pars,  on  Cont.,  36. 

The  court  instructs  you,  that  where  a  party  agrees  to  labor 
for  a  year  for  a  certain  sum,  he  must  labor  for  that  time  to  be 
entitled  to  any  compensation,  unless  he  leaves  with  the  con- 
sent of  his  employer,  or  the  treatment  and  conduct  of  the  em- 
ployer towards  him  is  such  as  to  reasonably  justify  him  in 
leaving.  If  he  quits  before  the  expiration  of  the  time  for 
which  he  agreed  to  labor,  without  any  sufficient  cause,  or  for 
any  cause  which  he  has  himself  wrongfully  provoked,  he  can- 
not recover  for  the  time  he  has  labored. 

§  12.  Payment  a  Condition  Precedent. — If  the  jury  believe, 
from  the  evidence,  that  the  services  claimed  and  sued  for  in 
this  suit,  were  rendered  under  a  contract  to  work  for  a  longer 
time  than  the  plaintiff  did  work,  and  that  the  defendant  was 
to  make  monthly  payments  for  such  services,  by  the  terms  of 
the  same  contract,  and  that  he  failed  to  make  such  payments 
as  stipulated,  then,  upon  such  failure,  the  plaintiff  had  a  right 
to  abandon  the  service  and  to  collect  of  the  defendant  what 
the  services  rendered  would  amount  to  at  the  stipulated  price. 
FollioU  vs.  Hunt,  21  111.,  654. 


G20  WORK,    LABOR    AND    SERVICES. 

§  13.  Burden  of  Proof. —  If  tlie  jury  believe,  from  tlie  evi- 
dence, that  the  plaintiff  made  a  contract  with  defendant  to 
work  for  him  {eight)  months  from,  etc.  (or  to  work  from  that 
time  nutil  defendant's  corn  should  be  gathered  in  the  fall),  at 
an  agreed  price  per  month,  and  if  the  jury  further  believe, 
from  tlie  evidence,  that  before  the  end  of  the  term  so  agreed 
upon  the  plaintiff  left  the  employ  of  the  defendant,  then  the 
burden  of  proof  is  upon  the  plaintiff  to  show,  by  a  preponder- 
ance of  evidence,  that  he  left  with  defendant's  consent,  or  was 
discharged  by  him,  or  that  the  plaintiff  had  just  and  reasonable 
cause  for  leaving  when  he  did,  otlierwise  he  can  recover  noth- 
ing for  the  work  done  under  such  contract. 

§  14.  Pretext  for  Leaving. — If  the  jury  believe,  from  the 
evidence,  that  the  plaintiff  agreed  to  work  for  the  defendant, 
at  a  stipulated  price  for  the  period  of  {one  year)^  if  they  could 
agree,  then,  in  order  to  justify  the  plaintiff  in  leaving  defend- 
ant's service  before  the  expiration  of  that  period,  if  it  appears 
from  the  evidence  tliat  he  did  so  leave,  there  must  have  been 
some  good  reason  for  disagreeing  with,  and  becoming  dissat- 
isfied with,  tiie  defendant.  The  plaintiff  would  have  no  right 
to  manufacture  a  pretext  for  disagreeing  with  the  defendant, 
and  then  take  advantage  of  that.  Whether  such  good  reasons 
did  exist  in  this  case  is  a  question  of  fact  to  be  determined  by 
the  jury  from  the  evidence. 

§  15.  Must  be  Substantial  Cause  for  Leaving,  etc.^ — The  court 
further  instructs  the  jury,  that  when  a  ]}erson  hires  out  to 
work  for  another  for  a  certain  fixed  time,  he  has  no  right,  on 
account  of  any  frivolous  or  fanciful  disagreement  with  his 
employer,  or  liis  employer's  family,  to  break  such  contract 
and  leave  his  employer's  service.  In  order  to  justify  sucli 
leaving  there  must  be  some  good  and  substantial  cause,  wliich 
the  jury  can  say,  from  the  evidence,  would  justify  a  reason- 
able person  in  leaving  such  employment,  or  else  the  employer 
must  in  some  manner  prevent  or  waive  a  further  performance 
of  the  contract. 

Note. — The  doctrine  announced  in  the  foregoing  instructions  regarding 
the  right  of  recovery  of  an  employe,  leaving  his  employer's  service  without 
good  cause,  before  the  expiration  of  the  time  tor  which  he  was  hired,  is  not 


WOKK,    LAnOR   AND    SERVICES.  621 

acknowledged  in  some  states.  Tt  is  hi-ld,  in  these  states,  that,  in  such  cases, 
if  the  employer  has  derived  any  benefit  from  the  hxbor  performed,  over  and 
above  the  damage  resulting  to  him  from  the  breach  of  the  contract,  the  law, 
thereupon,  raises  an  implied  promise  to  pay  to  the  extent  of  the  reasonable 
worth  of  the  excess.  In  such  cases  the  next  live  instructions  will  be 
proper. 

§  16.  Entire  Contract — Rnle  of  Damages. — The  law  is,  that 
when  a  person  agrees  to  work  for  another  for  a  fixed  and  def- 
inite period,  and  he  performs  labor  under  such  coTitract  which 
is  of  benefit  or  value  to  the  employer,  and  then  leaves  before 
the  expiration  of  the  term  for  which  he  was  hired,  without 
his  employer's  consent  and  without  reasonable  cause,  altliough 
he  cannot  enforce  payment,  according  to  the  contract,  he  is 
entitled  to  recover  what  his  services  are  reasonably  worth, 
over  and  above  the  damages  sustained  by  the  employer  from 
the  breach  of  the  contract  by  the  laborer,  less  any  payments 
which  may  have  been  made  on  the  contract.  2  Pars,  on 
Cont.,  38;  Pixie?'  vs.  Nichols^  8  la.,  106;  Briitoii  vs.  Tur- 
ner, 6  N.  H.,  481;  Fentoii,  vs.  CUrle,  11  Yt.,  560;  Ralston 
vs.  Kohl,  30  Ohio  St.,  92;  Eakiii  vs.  Harrison,  4  McCord, 
249. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  per- 
formed any  work  for  defendant,  as  claimed,  and  that  the 
services  were  of  any  benefit  to  the  defendant,  and  that  the 
same  have  not  been  fully  paid  for,  then,  although  you  may 
further  find  that  the  work  was  done  under  an  agreement  to 
work  for  a  definite  time,  at  a  given  price,  and  that  plaintiff 
left  such  employment  before  the  expiration  of  that  time,  with- 
out defendant's  consent,  and  without  any  good  or  reasonable 
cause  therefor,  still,  the  plaintiff  is  entitled  to  receive  ])ay  for 
such  services  what  they  were  reasonably  worth;  unless  you 
further  believe,  from  the  evidence,  that  the  defendant  sus- 
tained damage  inconsequence  of  plaintiff's  so  leaving,  in  which 
case  plaintiff  will  be  entitled  to  recover  what  such  services  were 
reasonably  worth  over  and  above  such  damages,  if  anything, 
less  the  payments  which  have  been  made  thereon,  if  any  are 
shown  by  the  evidence. 

If  you  believe,  from  the  evidence,  that  plaintiff  performed 
labor  for  the  defendant,  as  claimed  by  him,  and  that  such  labor 
was  performed  under   a  contract  to  work  for  defendant  for  a 


622  WORK,    LAEOE   AND    SEKVICES. 

fixed  and  definite  period  of  time,  and  that  sucli  services  were 
of  benetit  or  value  to  the  defendant,  and  have  not  been  paid 
for  in  full,  and,  further,  that  plaintiff  left  defendant's  employ 
before  the  expiration  of  said  peiiod  of  time  withuut  any  good 
or  reasonable  cause  therefor,  then  the  plaintiff  is  entitled  to 
recover  what  such  services  were  reasonably  worth,  if  anything, 
over  and  above  the  damages  sustained  by  the  defendant,  if  any 
are  shown  by  the  evidence  to  have  been  sustained  by  him,  on 
account  of  the  plaintiffs  so  leaving,  less  any  payments  which 
have  been  made  to  the  plaintiff  on  account  of  such  work,  if 
any  are  sliown  by  the  evidence. 

The  court  instructs  you,  as  a  matter  of  law,  that  if  one  per- 
son agrees  to  work  for  another  for  a  fixed  and  definite  period 
of  time,  at  an  agreed  price,  to  be  paid  at  the  expiration  of  the 
time,  or  from  time  to  time,  as  the  work  progresses,  and  the 
laborer  leaves  the  service  of  his  employer  before  the  expira- 
tion of  the  full  time  of  his  employment,  without  some  good 
and  reasonable  cause  therefor,  and  against  the  will  of  the  em- 
ployer, then  he  will  only  be  entitled  to  receive  for  the  work 
actually  done  what  the  same  was  reasonably  worth,  over  and 
above  tlie  damages,  if  any,  sustained  by  the  employer,  in  con- 
sequence of  the  laborer  leaving  before  the  time  fixed  in  that 
belialf. 

If  you  believe,  from  the  evidence,  that  some  time  on  or 
about,  etc.,  the  plaintiff  and  defendant  entered  into  a  contract 
by  which  the  plaintiff  agreed  to  work  for  the  defendant  for 

the  period  of months  from,  etc.,  at  the  agreed  price  of 

$ per  month,  to  be  paid  monthly,  and  that  the  work  sued 

for  in  this  case  was  done  under  that  contract,  and  if  you  fur- 
ther believe,  from  the  evidence,  that  without  any  good  or 
reasonable  cause  therefor  the  plaintiff  left  the  defendant's  em- 
ploy before  the  expiration  of  the  time  fixed  in  the  contract, 
and  without  the  consent  of  defendant,  and  that  the  defendant 
was  thereby  damaged,  then  the  plaintiff  can  only  recover  the 
reasonable  value  of  his  services  over  and  above  such  damage; 
and  if  you  believe,  from  the  evidence,  that  such  services  were 
reasonably  worth  no  more  than  the  amount  of  such  damage, 
then  you  should  find  for  the  defendant. 

§  17.  Must  Demean  Himself  Respectfully. — The  court  instructs 
the  jury,  that  when  a  person  is  employed  by  another  he  nuist, 


WOKK,    LACOE    AND    SERVICES.  023 

in  Ills  intercourse  witli  liis  employer  and  those  Lavinoj  control 
of  his  business,  and  with  those  doing  business  with  such  em- 
ployer, abstain  from  all  vulgarity  and  obscenity  of  language 
and  conduct,  if  required  to  do  so,  and  must  be  respectful  and 
obedient  to  the  reasonable  commands  of  his  employer  and 
those  having  control  of  his  business.  And  a  failure  in  anj'  of 
these  requirements  would  be  good  ground  for  discharging  such 
person  before  his  term  of  em[)loyment  expires.  Ilamlbi  et  al. 
vs.  Race,  78  111.,  422;  Brink  y&]  Fay,  7  Daly  (K  Y.),  5C2. 

§  18.  Leaving  on  Account  of  Sickness. — The  jury  are  in- 
structed, that  even  if  they  believe,  from  the  evidence  that  the 
work  sued  for  in  this  case  was  done  under  a  special  contract, 
by  which  the  plaintiff  agi-eed  to  work  for  a  fixed  and  specified 
time,  and  that  plaintiff  left  defendant's  employ  before  the  ex- 
piration of  that  time,  still,  if  the  jury  further  believe,  from 
the  evidence,  that  plaintiff"  was  compelled  to  so  quit  work  on 
account  of  sickness  (or  on  account  of  sore  eyes),  then  he  would 
be  entitled  to  recover  for  the  time  he  actually  did  work  at  the 
agreed  price,  if  the  jury  find,  from  the  evidence,  that  there 
was  an  agreed  price  between  the  ])arties;  and  if  the  jury  find 
there  was  no  agreed  price,  then  what  such  labor  was  reasonably 
worth.  HuUbard  vs.  Belden,  27  Yt.,  645;  Green  vs.  Gilbert, 
21  Wis.,  395. 

§  19.  Discharged  or  Compelled  to  Leave,  etc. — The  court  in- 
structs the  jury,  that  while  the  law  is  that  a  person  who  en- 
gages to  labor  for  another  for  a  si^ecified  period,  at  a  given 
price,  has  no  right  to  recover  for  his  work,  etc.,  unless  he  per- 
forms his  entire  contract,  or  is  excused  therefrom  by  the  em- 
ployer, or  is,  in  some  manner,  justified  in  quitting  before  the 
expiration  of  the  time;  yet  if  he  is  prevented  from  performing 
his  contract  by  the  employer,  or  is  discharged  from  his  em- 
ployment, or  is,  from  ill-usage,  compelled  to  abandon  the  serv- 
ice, he  may  then  recover  what  his  labor,  actually  performed, 
will  amount  to  at  the  contract  price.  Angel  vs.  Hanna,  22 
111.,  429;  Mitchell  vs.  Scott,  41  Mich.,  108;  Webb  vs.  U.  M. 
L.  Ins.  Co.,  5  Mo.  App.,  51. 

§  20.     Discharge  without  Good  Cause — Measure  of  Damages. — 

That  when  one  person  hires  another  to  work  for  him  for  a 


624  WOEK,    LAEOE    AND    SERVICES. 

definite,  fixed  time,  at  an  agreed  price  for  the  wliole  time,  or 
at  so  much  per  month,  the  employer  cannot  legally  discharge 
the  workman  without  his  consent,  or  without  some  good  and 
reasonable  cause,  until  the  expiration  of  such  time;  and  if  he 
does  do  so  he  will  still  be  liable  to  the  workman  for  the  full 
amount  of  his  wa::;es  for  the  whole  time  covered  by  the  origi- 
nal agreement,  except  that  in  case  the  workman  earns  any- 
thing, or  by  reasonable  exertion  and  effort  might  have  earned 
something  during  the  unexpired  portion  of  the  time,  then 
the  employer  will  be  entitled  to  a  credit  for  the  sum  so 
earned,  or  that  might  have  been  earned,  by  the  use  of  reason- 
able effort  and  diligence  directed  to  that  end.  Foioler  vs. 
Armour^  24  Ala.,  194;  King  v^.  Steir^en,  4:4:  Penn.  St.,  99; 
Jiicks  vs.  Yates,  5  Ind..  115. 

If  you  believe,  from  the  evidence,  that  on  or  about,  etc., 
the  defendant  employed  the  plaintiff  to  make  cheese  for  him 
during  the  cheese-making  season  of  A.  D.  18 — ,  and  agreed 

to  pay  him  for  his  services  at  the  rate  of  $ per  day,  and 

that  afterwards  the  plaintiff  commenced  to  work  for  defend, 
ant  under  said  contract,  and  that,  before  the  end  of  such  season, 
defendant  discharged  plaintiff  from  such  employment  without 
the  fault  of  the  plaintiff,  and  against  his  will,  then  the  plaint- 
iff is  entitled  to  recover,  at  the  rate  of  S per  day,  for  all 

that  portion  of  the  unexpired  term  after  said  discharge,  during 
which,  the  evidence  shows,  he  was  necessarily  unemployed  by 
reason  of  such  discharge,  if  you  believe,  from  the  evidence, 
that  he  was  during  any  portion  of  said  time  necessarily  unem- 
ployed by  reason  of  such  discharge. 

§  21.  Workman  Must  Avoid  Unnecessary  Damaj^e. — The  court 
instructs  the  jury,  that  when  a  person  hired  to  work  for  an- 
other for  a  fixed  and  definite  time  is  wrongfully  discharged 
by  his  employers  before  the  time  expires,  he  must  use  all  rea- 
sonable means  and  efforts  to  find  other  employment  during 
the  unexpired  time  covered  by  the  contract,  so  as  to  avoid 
imnecessary  damage  to  himself  by  reason  of  such  discharge. 
The  object  of  the  law  in  such  cases  is  to  pay  the  workman 
for  the  labor  performed  by  him,  and  also  to  compensate  him 
for  any  damage  resulting  to  him  from  such  discharge,  and 


WOEK,    LABOR    AND    SERVICES.  625 

wliicli  could  not  be  avoided  by  reasonable  effort  on  liis  part. 
Ilearne  vs.  Garrett^  49  Tex.,  G19. 

§  22.  Services  by  a  Member  of  the  Family. — The  court  instructs 
the  jury,  tliat  while  it  is  the  general  rule  of  law,  that  where 
one  renders  services  for  another,  which  are  accepted  by  the 
other,  the  law  will  imply  a  promise  to  pay  for  such  services; 
yet,,  if  such  services  are  rendered  by  one  who  is  a  member  of 
the  family,  receiving  support  therein  as  such,  then  no  such 
implication  arises;  nor  can  a  recovery  be  had  for  services  so 
rendered,  except  upon  evidence,  showing  a  promise  to  pay  for 
the  same,  or  such  facts  and  circumstances  as  lead  the  jury  to 
believe,  from  the  evidence,  that  it  was  understood  by  the 
parties  that  the  services  were  to  be  paid  for.  ThorpYS,.  Bate- 
man,  37  Mich.,  68;  Smith  vs.  Johnson,  45  la.,  308;  Sprague 
vs.  Waldo,  38  Yt,  139;  Davis  vs.  Goodenow,  27  Yt,  715; 
Earjs  vs.  McConnell,  42  Ind.,  285. 

If  you  believe,  that  during  the  time  in  question,  the  plaint- 
iff was  living  in  defendant's  family  as  a  member  thereof,  that 
he  was  clothed  and  fed  by  defendant,  that  he  was  cared  for 
in  sickness  and  in  health  by  other  members  of  defendant's 
family,  and  in  all  respects  treated  as  a  member  of  the  family, 
then  the  law  will  not  imply  a  promise  on  the  part  of  the  de- 
fendant to  pay  for  the  services  rendered  during  that  time,  and 
in  such  case  he  should  not  recover  for  such  services;  unless  you 
further  believe,  from  the  evidence,  that  defendant  has  prom- 
ised to  pay  for  the  same,  or  unless  the  facts  and  circumstances 
proved  lead  you  to  believe,  from  the  evidence,  that  there  was 
an  understanding  between  the  parties  that  plaintiff  was  work- 
ing for  wages. 

If  you  believe,  from  the  evidence,  that  plaintiff  was  a  mem- 
ber of  defendant's  family  during  the  whole  of  the  time  for 
which  the  services  in  question  are  charged,  and  was  treated 
and  cared  for  the  same  as  the  other  members  of  his  family, 
then  there  is  no  implied  promise  raised  to  pay  for  any  services 
he  may  have  performed,  simply  from  the  fact  that  defendant 
accepted  the  services  and  received  tlie  benefit  thereof. 

§  23.     Stranger  a  Member  of  the  Family. — If  the  jury  believe, 
from  the  evidence,  that  the  plaintiff  worked  for  defendant,  and 
40 


626  \70KK,  lal;ok  and  services. 

that  liis  time  and  labor  were  reasonably  worth  more  than  his 
board  and  washing,  then  the  plaintiff  is  entitled  to  recover 
what  his  time  and  services  were  reasonably  worth,  over  and 
above  what  he  has  received  or  been  paid,  if  any thini^,  as  shown 
by  the  evidence;  unless  the  evidence  further  shows  that  the 
plaintiff  agreed  to  do  the  work  for  his  board  and  washing,  or 
that  there  was  some  other  special  contract  between  the  parties 
fixing  the  price  of  the  labor.  Wells  vs.  Perkins^  43  "Wis., 
160;  Sword  vs.  Keith,  31  Mich.,  247. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  per- 
formed labor  for  the  defendant  for  which  he  has  not  been 
paid,  and  that  such  labor  and  services  were  reasonably  worth 
more  than  the  price  of  his  board  and  washing,  then,  before 
the  defendant  can  avail  himself  of  the  defense  that  plaintiff 
agreed  to  work  for  his  boai-d  and  washing,  the  defendant  must 
prove  the  existence  of  such  a  contract  by  a  preponderance  of 
evidence.  And  if  you  find  that  the  evidence  bearing  upon 
this  point  is  in  favor  of  the  plaintiff",  or  that  it  is  equally  bal- 
anced, then  you  should  allow  the  plaintiff'  what  his  services 
were  reasonably  worth,  over  and  above  what  he  has  had,  as 
shown  by  the  evidence. 

§  24.  Services  of  Child. — The  court  instructs  the  jury,  that 
although  a  child  may  be  over  age,  still,  as  long  as  the  relation 
of  parent  and  child  continues  to  exist  the  same  as  before  he 
became  of  age,  the  law  raises  no  implied  promise  to  pay  for 
the  services  of  the  child.  Ililler  vs.  Miller,  16  111.,  296; 
Hart  vs.  Hess,  41  Mo.,  441;  ^Vells  vs.  Perlins,  43  Wis.,  160; 
Adams  vs.  Adams,  23  Ind.,  50;  Smith  vs.  Smith,  30  IST.  J.  Eq., 
564. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  con- 
tinued to  reside  with  his  father  after  becoming  of  age,  and  was 
treated  as  a  member  of  the  family  the  same  as  before  coming 
of  age,  then,  to  entitle  him  to  recover  for  services  performed 
during  that  period  of  time,  you  must  believe,  from  the  evi- 
dence, that  at  the  time  the  services  wee  rendered,  it  was 
expected  by  both  parties  that  he  should  be  paid  for  such  serv- 
ices, or  else  that  the  circumstances  were  such  as  to  reason- 
ably justify  the  plaintiff  in  expecting  pay  for  his  services. 

If  you  believe,  from  the  evidence,  that  when  the  services 


woKK,  la:.or  and  services.  627 

in  question  were  performed,  the  plaintiff  lived  with  liis  father, 
tlie  same  as  his  other  children  did,  and  appai-ently  the  same  as 
lie  had  done  before  coming  of  age ;  then  to  entitle  him  to 
recover,  it  is  incumbent  upon  the  plaintiff  to  prove,  by  a  pre- 
lionderance  of  evidence,  an  express  hiring  or  promise  to  pay, 
or  circumstances  from  which  snch  hiring  or  promise  may 
reasonably  be  inferred.  Steel  vs.  Steely  12  Penn.  St.,  0-i; 
nihlish  vs.  Hihlish,  71  Ind.,  27. 

Ordinarily  when  one  person  does  work  for  another  who 
knowingly  permits  the  work  to  be  done  for  him  and  he 
receives  the  benefit  thereof,  the  law  raises  a  presinnption  that 
the  laborer  is  to  be  paid  for  his  labor,  but  there  is  no  such 
presumption  between  father  and  son  while  living  together  in 
the  same  family  and  one  does  work  for  the  other. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  was 
living  with  his  father  as  a  member  of  his  father's  family  wdien 
the  work  in  question  was  done,  then  it  is  not  enough  that  the 
plaintiff  intended  or  expected  to  be  paid  for  his  labor — this 
intention  or  expectation  must  have  been  mutual.  It  is  not 
necessary  that  there  should  have  been  any  express  contract  in 
so  many  words  between  the  parties,  but  besides  the  mere 
doing  of  the  work  imder  the  direction  of  the  father,  in  order 
to  warrant  a  verdict  for  the  plaintiff,  the  jury  must  believe, 
from  the  evidence,  that  when  the  work  was  done  there  was  an 
expectation  of  receiving  i;ay  on  the  j\art  of  the  plaintiff  and 
an  intention  to  pay  on  the  part  of  the  father.  Jliblish  vs. 
HihlisK  71  Ind.,  27. 

§  25.  When  Promise  may  be  Inferretl. — If  the  Jury  believe, 
from  the  evidence,  that  the  plaintiff,  after  becoming  of  age, 
and  during  the  time  in  question,  was  treated  differently  from 
the  other  children  of  the  family,  and  did  the  work  of  a  serv- 
ant, and  was  treated  as  such,  then  these  are  circumstances 
which  the  jury  may  consider,  with  all  the  other  evidence  in 
the  case,  in  determining  whether  the  parties  expected  and 
understood  that  compensation  should  be  made  for  plaintiff's 
labor  and  services. 

§  26.  Emancipation  of  Minor. — A  father,  by  agreement  with 
his  minor  child,  may  relinquish  to  the  latter  the   right   which 


62S  WOKK,    LAEOE    AND    SERVICES. 

he  would  otherwise  have  to  his  services,  and  may  authorize 
those  who  employ  him  to  pay  liim  his  wages,  and  he  will  then 
have  no  right  to  demand  those  wages,  either  from  the  em- 
ployer or  from  the  child.  Monaghan  vs.  School  Dist.^  etc., 
38  Wis,,  100. 

You  are  instructed,  that  while  it  is  in  general  true  that  a 
father  is  entitled  to  the  services  and  earnings  of  his  son,  until 
he  arrives  at  the  age  of  twenty-one  years,  still,  the  father  may 
emancipate  his  minor  son,  and  by  agreement  with  him  relin- 
quish the  right  which  he  would  otherwise  have  to  the  son's 
services  and  earnings.  And  this  the  father  may  do,  although 
he  is  insolvent  at  the  time.  Wamlold  vs.  Ylcl^^  50  Wis.,  456. 
If  you  believe,  from  the  evidence,  that  A.  B.,  the  son  of 
the  plaintiff,  made  a  contract  upon  his  own  account  with  the 
defendant,  by  which  he  agreed  to  work  for  the  defendant 
from,  etc.,  and  defendant  was  to  pay  him,  etc.,  and  that  the 
work  for  which  this  suit  is  brought  was  done  by  the  said  A. 
B.  under  said  contract,  and  if  the  jury  further  believe,  from 
the  evidence,  that  such  contract  for  services  by  the  said  A.  B. 
was  made  with  the  knowledge  and  consent  of  the  said  plaintiff, 
or  that  the  plaintiff  knew  of  the  existence  of  such  contract 
while  the  work  was  progressing,  and  did  not  repudiate  the 
contract  or  notify  the  defendant  of  his  objection  thereto,  then 
the  son  was  entitled  to  receive  his  own  earnings,  and  a  pay- 
ment to  the  son  would  be  a  good  payment.  Burdsall  vs. 
Waggoner,  4  Col.,  261. 

§  27.     Minor  Can  only  DisafTirm  Contrart  after  Majority — {By 

Statute). — By  the  laws  of  this  state  a  minor  is  bound  by  his 
contracts  unless  he  disaffirms  them  within  a  reasonable  time 
after  attaining  his  majority ;  disaffiiniance  before  majority  is 
of  no  effect.  If  a  minor  renders  personal  services  under  a 
contract,  and  accepts  payment  for  them  according  to  the  con- 
tract, he  cannot  maintain  an  action  by  his  next  friend  to 
recover  again.  Murj^hy  vs.  Johnson,  45  la.,  57;  Jones  vs. 
Jones,  46  la.,  466. 

§  28.  Gratuitous  Labor, — That  while  the  law  will  in  general 
hold  a  party  for  whom  work  has  been  i)erformed,  with  his 
knowledge  and  consent,  liable  to  pay  for  the  same,  yet  a  party 


WORK,    LAi:OR   AND    SERVICES.  629 

is  under  no  obligation  to  pay  for  work  done  by  one  wlio  vol- 
unteers to  do  it  without  ])ay,  or  as  a  gratuity;  and  tlie  fact 
that  such  work  has  been  beneficial  to  the  party  for  whom  it 
was  done,  creates  no  obligation  to  ]iay  for  it,  if,  at  the  time 
it  was  being  done,  it  was  understood  by  the  parties  to  be  gra- 
tuitous. 

If  you  believe,  from  the  evidence,  that  the  plaintiff  made 
his  home  at  defendant's  house  during  the  time  for  which  he 
claims  pay  for  his  services,  and  that  he  did  not,  at  that  time, 
intend  to  charge  the  defendant  for  the  services  he  rendered, 
and  both  the  parties  regarded  the  same  as  a  donation,  or  as  an 
equivalent  for  living  at  defendant's  house,  then  he  cannot  re- 
cover for  such  services  in  this  suit.  Broxighton  vs.  ISmwrt^  59 
III.,  440;  Morris  vs.  Barnes^  35  Mo.,  412. 

Labor  done,  and  services  rendered  by  one  person  for  an- 
other, without  the  knowledge  or  request  of  the  person  for 
whom  the  work  is  done  or  service  rendered,  no  matter  how 
meritorious  or  beneficial  to  the  latter,  afford  no  ground  of  ac- 
tion in  favor  of  the  person  doing  the  work,  or  rendering  the 
service.     Bartholomew  vs.  Jaclison,  20  John.,  28. 

And  in  this  case,  though  you  may  believe,  from  the  evi- 
dence, that  the  plaintiff  rendered  services  which  were  of  value 
and  beneficial  to  the  defendant  in  saving  his  crops,  still,  if 
you  further  believe,  from  the  evidence,  that  such  services 
were  rendered  without  the  knowledge  or  request  of  the  de- 
fendant, and  that  he  has  never  agreed  to  pay  for  the  same, 
then  the  plaintiff  cannot  recover  for  such  services.  Coe  vs. 
Wager,  42  Mich.,  49. 

§  29.  Agreed  Price  Must  Govern. — If  the  jury  believe,  from 
the  evidence,  that  the  plaintiff  rendered  the  services  for  the 
defendant,  as  claimed  and  sued  for  in  this  case,  at  an  agreed 
price,  and  that  he  has  not  been  fully  paid  for  the  same,  then 
the  jury  should  render  a  verdict  in  favor  of  the  plaintiff  for 
such  an  amount  as  the  services  actually  rendered  would  come 
to  at  the  stipulated  price,  less  such  an  amount  as  the  jury  be- 
lieve, from  the  evidence,  has  been  paid  thereon. 

§  30.  Contract,  Presumed  to  Continne,  When. — The  court  in- 
structs the  jury,  that  where  a  person  enters  the  employ  of 


630  WOKK,    LAEOK    AND    SEIiYICES. 

another  nncTer  a  special  contract,  fixinf^  the  time  of  service  and 
the  price  to  be  paid  therefor,  and  he  continues  in  such  em- 
ployment after  the  term  has  ended,  without  any  new  contract 
or  agreement,  he  will  be  considered  as  holding  under  the 
original  contract,  so  far  as  the  price  of  his  labor  is  concerned. 
G.  &  B.  S.  Ilch.  Co.  vs.  BulHey,  48  111.,  189;  Vail  vs.  N. 
e/".,  etc.^  Co.,  32  Barb.,  504;  Ranch  vs.  Albright^  36  Penn  St., 
367. 

If  you  believe,  from  the  evidence,  that  there  was  no  con- 
tract between  plaintiff  and  defendant  that  plaintiff  should  work 
for  defendant  for  any  definite  period  of  time,  you  should  find 
for  the  plaintiff  for  the  time  he  did  work,  if  any,  at  the  rate 
per  month  agreed  upon,  if  you  find,  from  the  evidence,  that 
any  price  was  agreed  upon  between  the  parties. 

§  31.  Evidence  of  Reasonable  AVortli. — If  the  jury  believe, 
from  the  evidence,  that  the  plaintiff  did  the  work  in  question, 
as  claimed,  and  that  there  was  no  special  contract  as  to  the 
price,  then,  in  coming  at  the  vahie  of  the  services,  the  jury 
should  take  into  account  the  nature  of  his  employment,  the 
kind  of  service  required  of  him,  and  the  degree  of  care  and 
attention  bestowed  by  him  on  the  defendant's  affairs,  so  far  as 
these  things  have  been  shown  by  the  evidence,  if  they  do  so 
appear. 

If,  in  this  case,  you  find  for  the  plaintiff,  and  you  believe, 
from  the  evidence,  that  no  special  price  was  agreed  upon,  then, 
in  arriving  at  the  value  of  the  services,  you  should  consider 
the  means  of  knowledge  of  such  value  i)ossessed  by  the  several 
witnesses  who  have  testified  in  relation  to  such  value.  Those 
witnesses  who  helped  to  do  the  Avork,  if  any  such  are  shown 
by  the  proof,  all  things  being  equal,  would  generally  afford 
better  and  more  reliable  evidence  of  such  value  than  those 
who  speak  from  theory  or  general  knowledge  only,  especially 
if  the  evidence  shows  that  they  never  did  such  work  or  saw  it 
done. 

§  32.  Burden  of  Proof  of  Payment. — The  juiy  are  instructed, 
that  the  burden  of  proof  as  to  any  payment  claimed  to  have 
been  made  to  the  plaintiff  for  services  rendered,  is  upon  the 
defendant.     And  in  case  of  a  conflict  of  testimonv  as  to  such 


WOKK,    LAl^OR    AND    SERVICES.  631 

payments,  the  rule  of  law  is,  that  if  the  weight  of  evidence 
against  the  payment  exceeds,  or  even  only  equals  the  weight 
of  evidence  in  favor  of  their  having  been  made,  then  the  jury 
should  consider  such  payments  not  proved. 

§  33.  Offer  to  Compromise. — The  jury  are  instructed,  that  the 
plaintiff  is  in  no  manner  bound  by  any  offer  that  he  may  have 

made  to  accept  $ in  settlement  of  his  claim;  provided  the 

jury  believe,  from  the  evidence,  that  such  offer  was  made 
solely  for  the  purpose  of  bringing  about  an  amicable  settle- 
ment with  defendant,  or  by  way  of  compromise;  nor  in  such 
case  should  such  offer  be  regarded  as  an  adinission  that  no 
more  than  that  sum  was  due.  Monell  vs.  Burns,  4  Deuio, 
121. 

§  34.  Effect  of  Pleading  Set-Off.— The  court  instructs  the 
jury,  that  the  defendant  has  pleaded  in  this  case  a  plea  of  set- 
oft",  accompanied  by  a  bill  of  particulars,  in  which  he  has 
charged  the  plaintiff  for  board  and  clothes,  etc.,  daring  the 
entire  period  of  time  in  question,  and  the  fact  of  pleading 
such  plea  and  making  such  charges  are  circumstances  proper 
to  be  taken  into  consideration  by  the  jury,  together  with,  all 
the  evidence  in  the  case,  in  determining  whether  or  not  it  was 
understood  by  defendant  at  the  time  that  plaintiff  was  ])erform- 
ing  the  services  in  question  without  any  expectation  of  pay 
therefor. 

The  court  instructs  you,  that  the  defendant  has  pleaded  in 
this  case  non-assumpsit  and  set-oft";  that  by  tlius  pleading  the 
defendant  does  not  admit  the  contract  relied  upon  by  the 
plaintift";  an  implied  contract  as  well  as  a  special  contract  is 
denied  by  the  plea  of  non-assumpsit,  and  the  plaintiff  is 
required  to  prove  h's  case,  by  a  preponderance  of  the  evidence^ 
before  he  is  entitled  to  recover,  notwithstanding  the  plea  of 
set-off;  and  unless  you  find  the  greater  weight  of  evidence  in 
favor  of  the  plaintiff's  claim,  you  should  find  for  the  defend- 
ant. 

One  promise  is  a  sufficient  consideration  to  support  another 
promise,  and  where  a  person  does  an  act  beneficial  to  another, 
or  agrees  to  do  so,  that  forms  a  sufficient  consideration  to 
support  an  agreement  to  pay  for  the  same. 


632  WOKK,    LABOK   AND    SEEVICES. 

§  35.  Written  Contract  Variod  by  Parol. — A  contract  under 
seal  may  be  charged  by  a  subsequent  verbal  agreement  to  pay 
an  additional  sum  for  the  same  work  and  materials  mentioned 
in  the  agreement.  And  in  this  case,  if  the  jury  believe,  from 
the  evidence,  that  there  was  a  subsequent  verbal  agreement 
between  the  parties,  varying  the  terms  of  the  written  agree- 
ment, and  that  the  work  in  question  was  done  in  compliance 
with  the  latter  agreement,  it  will  be  binding  between  the 
parties.  Cook  vs.  Mur^hyylO  111.,  96;  Seaman  vs.  0' Ilarra, 
29  Mich.,  66. 


CHAPTER   L. 

GENERAL   INSTEUCTIONS   IN  CRIMtN[AL   CASES. 


Sec.    1.  Presumption  of  innocence — Degree  of  proof. 

2.  Every  allegation  must  be  proved. 

3.  Prisoner  entitled  to  every  reasonable  hypothesis. 

4.  Probability  not  sufficient. 

5.  Preponderance  of  evidence  not  sufficient. 

6.  Crime  must  be  proved  beyond  a  reasonable  doubt. 

7.  All  the  evidence  should  be  considered. 

8.  The  guilty  ninety-nine. 

9.  The  jury  should  endeavor  to  reconcile  testimony. 

10.  Want  of  motive. 

11.  Accused  under  no  obligation  to  testify. 

12.  Failure  to  testify — No  presumption  against  the  defendant.    ' 

13.  Testimony  of  accused  to  be  weighed  by  the  jury. 

14.  Testimony  of  the  accused  should  be  considered  by  the  jury. 

15.  Circumstantial  evidence  competent. 

16.  Circumstantial  evidence  defined. 

17.  Facts  must  all  be  consistent  with  guilt  and  inconsistent  with  in- 

nocence. 

18.  Degree  of  certainty  required, 

19.  One  fact  inconsistent  with  guilfc. 

20.  Direct  evidence  not  required. 

21.  Admission  in  criminal  cases — Must  all  be  taken  together. 

22.  Confessions  must  be  treated  like  other  evidence. 

23.  Confessions  to  be  received  with  caution. 

24.  Confessions,  when  corroborated. 

25.  When  sufficient  to  convict. 

26.  Testimony  of  accomplice. 

27.  Fabrication  of  testimony. 

28.  Contradictory  and  inconsistent  statements. 

29.  One  witness  sufficient,  when. 

80.  The  crime  charged  must  be  proved. 

31.  Statements  of  prosecuting  attorney  not  based  on  evidence. 

. 32.  Reasonable  doubt  defined. 

33.  Duty  of  the  jury  to  determine  doubts. 

34.  Reasonat'le  doubt  in  circumstantial  evidence. 

35.  Attempt  to  escape — How  considered. 

36.  Jury  the  judges  of  the  law  in  some  States. 

37.  Alibi,  proof  of. 

38.  Alibi  need  not  be  proved  beyond  a  reasonable  doubt. 

(633) 


634  GENERAL   INSTKUCTIONS    IN    CRIMINAL    CASES. 

39.  Alibi — Burden  of  proof. 

40.  Doubt  as  to  identity  of  defendant. 

41.  Proof  of  identity. 

42.  Good  character  presumed. 

43.  Former  good  character  proved. 

44.  Omission  to  prove  good  character. 

45.  Proof  of  good  character — Effect  of. 

46.  Proof  of  good  character,  vs^hen  proper. 

47.  Guilt  proved,  notwithstanding  good  character. 

XoTE. — The  rules  already  given  under  the  head  of  "  Credibility  of  Wit- 
nesses— Weight  of  Testimon}-,"  apply,  in  the  main,  equally  to  civil  and 
criminal  suits.  The  following  rules,  relating  to  degree  of  proof  and  weight 
of  evidence,  apply  more  especially  to  criminal  prosecutions. 

§  1.  Presumption  of  Innocence — Degree  of  Proof. — The  court 
instructs  tlie  jury,  that,  in  this  case,  the  law  raises  no  pre- 
sumption against  the  prisoner,  but  every  presumption  of  the 
law  is  in  favor  of  his  innocence;  and,  in  order  to  convict  him 
of  the  crime  alleged  in  the  indictment,  or  of  any  lesser  crime 
included  in  it,  every  material  fact  necessary  to  constitute  such 
crime  must  be  proved  beyond  a  reasonable  doubt;  and  if  the 
jury  entertain  any  reasonable  doubt  upon  any  single  fact  or 
element  necessary  to  constitute  the  crime,  it  is  your  duty  to  give 
the  prisoner  the  benefit  of  such  doubt,  and  acquit  him.  S)iy- 
der  vs.  State^  59  Ind.,  105. 

§  2.  Every  Allegation  Must  be  Proved. — The  court  instructs 
the  jury,  that  it  is  incumbent  upon  the  prosecution  to  prove 
every  material  allegation  of  the  indictment  as  therein  charged. 
Nothing  is  to  be  presumed  or  taken  by  implication  against 
the  defendant;  the  law  presumes  him  innocent  of  the  crime 
with  which  he  is  charged  until  he  is  proven  guilty  beyond  a 
reasonable  doubt  by  competent  evidence.  And  if  the  evidence, 
in  this  case,  leaves  upon  the  minds  of  the  jury  any  reasonable 
doubt  of  defendant's  guilt,  the  law  makes  it  your  duty  to  acquit 
him. 

§  3.     Prisoner  Entitled  to  Eveiy  Reasonable  Hypotbesis. — The 

defendant  is  entitled  to  every  presumption  of  innocence  com- 
patible with  the  evidence  in  the  case,  and  if  it  is  possible  to 
account  for  the  death  of  the  deceased  ui)on  any  reasonable 
hypothesis  other  than  that  of  the  guilt  of  the  defendant,  then 


GENEKAL    INSTEUCTIONS    IN    CRIMINAL    CASES.  635 

it  is  your  duty  to  so  account  for  it,  and  find   the  defendant 
not  guilty. 

§  4.  Probability  not  Siifiioiont. — The  court  instructs  tlie  jury, 
that  in  criminal  cases,  even  where  the  evidence  is  so  strong 
tliat  it  demonstrates  the  probability  of  the  guilt  of  the  party 
accused,  still,  if  it  fails  to  establish,  beyond  a  reasonable  doubt, 
the  guilt  of  the  defendants,  or  of  one  or  more  of  them,  in 
manner  and  form  as  charged  in  the  indictment,  then  it  is  the 
duty  of  the  jury  to  acquit  any  defendant  or  defendants,  as  to 
whose  guilt  they  entertain  such  reasonable  doubt. 

§  5.  Preponderance  of  Evitlence  not  Sufficient. — That,  in  law, 
the  accused  is  always  presumed  to  be  innocent  until  his  guilt 
is  established  by  evidence;  and  to  authorize  a  conviction,  such 
guilt  nmst  be  established  beyond  a  reasonable  doubt — a  mere 
preponderance  of  evidence  is  not  sufficient. 

§   6.     Crime  Must  be   Proved  Beyond  a  Reasonable  Donbt. — The 

court  instructs  the  jury,  that  before  a  conviction  can  be  right- 
fully claimed  by  the  people,  in  this  case,  the  truth  of  every 
material  averment  contained  in  the  indictment  must  be  proved 
to  the  satisfaction  of  the  jury,  beyond  any  reasonable  doubt. 
That,  as  a  matter  of  law,  the  defendants  are  presumed  to  be 
innocent  of  the  crime  charged  in  the  indictment  until  such 
time  as  the  guilt  of  the  parties  charged  is  proved,  as  alleged, 
by  competent  evidence,  beyond  any  reasonable  doubt,  dress- 
ier vs.  The  People,  117  111.,  424. 

§  7.  All  the  Evidence  Should  be  Considered. — That  in  order  to 
fairly  determine  whether  the  defendants  are  proven  guilty  of 
the  crime  of  {hurglarif),  in  manner  and  form  as  charged  in  the 
indictment,  beyond  any  reasonable  doubt,  as  the  law  requires, 
the  jury  should  take  into  consideration  all  of  the  evidence 
elicited  from  the  defendants'  witnesses,  as  well  as  that  detailed 
for  the  prosecution ;  and  if,  after  a  full  and  dispassionate  con- 
sideration of-  all  the  evidence  in  the  case,  you  still  entertain 
any  reasonable  doubt  as  to  whether  the  defendants,  or  any  of 
them,  committed  the  crime,  in  manner  and  form  as  charged  in 
the  indictment,  then  you  should  acquit  the  person  or  persons 
as  to  whose  guilt  you  entertain  such  reasonable  doubt. 


636  GENERAL    INSTEL'CTIONS    IN    CRIMINAL    CASES. 

§  8.  The  Guilty  Ninety-Nine. — The  policy  of  our  law  deems 
it  better  that  many  guilty  ])ersoDS  should  escape  rather  tlian 
one  innocent  person  should  be  convicted  and  punished;  so 
that,  unless  you  can  say,  after  a  careful  consideration  of  all  the 
evidence  in  tlie  case,  that  every  material  allegation  of  the 
indictment  is  proved  beyond  a  reasonable  doubt,  you  should 
Hud  the  defendant  not  guiltj. 

§  9.  Jury  Should  Endeavor  to  Reconcile  Testimony. — The  jui'j 
are  instructed,  that  in  passing  upon  the  testimony  of  {defend- 
ants) witnesses,  in  this  case,  they  should  endeavor  to  reconcile 
their  testimony  with  the  belief  that  all  the  witnesses  have 
endeavored  to  tell  the  truth,  if  they  can  reasonably  do  so  under 
the  evidence,  and  if  reasonably  possible  attribute  any  differ- 
ences or  contradictions  in  their  testsmony,  if  any  exist,  to 
mistake  or  misrecollectioUj  rather  than  a  willful  intention  to 
swear  falsely. 

§  10.  Want  of  3Iotive. — That  when  the  evidence  fails  to 
show  any  motive  to  commit  the  crime  charged,  on  the  [  ai-t  of 
the  accused,  this  is  a  circumstance  in  favor  of  his  innocence. 

And,  in  this  case,  if  the  jury  Und,  upon  careful  examination 
of  all  the  evidence,  that  it  fails  to  show  any  motive,  on  the 
part  of  the  accused,  to  commit  the  crime  charged  against  him, 
then  this  is  a  circumstance  Mhicli  the  jury  ought  to  consider  in 
connection  with  all  the  other  evidence  in  the  case  in  making 
up  their  verdict.     Clough  vs.  State,  7  Keb.,  320. 

§  11.  Accused  under  no  Obligation  to  Testify. — The  court  in- 
structs the  jury,  that  while  the  statute  of  this  state  provides 
that  a  person  charged  with  crime  may  testify  in  his  own  be- 
half, he  is  under  no  obligation  to  do  so,  and  tlie  statute 
expressly  declares  that  his  neglect  to  testify  shall  not  create 
any  presumption  against  him. 

§  12.  Failure  to  Testify — No  Presumption  against  Defendant. 
— The  court  instructs  the  jury,  that  while  the  statute  of  this 
state  provides  that  a  person  charged  with  crime  may  testify 
in  his  own  behalf,  he  is  under  no  obligation  to  do  so,  and  the 
statute   expressly  declares  that  his  neglect  to  testiiy  shall   not 


GENERAL   INSTKL'CTIONS    IN    CKIMINAL    CASES.  G37 

create  any  presumption  against  liim.  Tlie  jury  should  decide 
the  case  with  reference  alone  to  testimony  actually  introduced 
before  them,  and  without  reference  to  what  might,  or  might 
not,  have  been  proved,  if  otlier  persons  had  testified. 

§  13.     Testimony  of  the  Accused  to  be  Weighed  by  the  Jury. — 

The  court  instructs  the  jury,  that  altliough  the  law  makes  the 
defendants  in  this  case  competent  witnesses,  still,  the  jury  are 
the  judges  of  the  weight  which  ought  to  be  attached  to  their 
testimony ;  and,  in  considering  what  weight  should  be  given 
it,  the  jury  should  take  into  consideration  all .  the  facts  and 
circumstances  surrounding  the  case,  as  disclosed  by  the  evi- 
dence, and  give  the  defendants'  testimony  only  such  weight  as 
they  believe  it  entitled  to,  in  view  of  all  the  facts  and  circum- 
stances proved  on  the  trial.  Bressler  vs.  ThePeople,,  117  111., 
441. 

The  law  gives  persons  accused  of  crime  the  right  to  testify 
in  their  own  behalf,  but  their  credibility  and  the  weight  to  be 
given  to  their  testimony,  are  matters  exclusively  for  the  juiy; 
therefore,  in  weighing  the  testimony  of  the  defendants,  A  B 
and  C  D,  in  this  case,  you  have  a  right  to  take  into  consideration 
the  manner  of  testifying,  the  reasonableness  or  unreasonableness 
of  their  account  of  the  transaction,  and  interest  in  the  result  of 
the  case  to  them,  as  affecting  their  credibility.  You  are  not 
required  to  receive  blindly  the  testimony  of  such  accused  per- 
sons as  true,  but  you  are  to  consider  whether  it  is  true  and 
made  in  good  faith,  or  only  for  the  purpose  of  avoiding  con- 
viction. 

The  jury  in  criminal  cases  are  not  bound  to  believe  the  tes- 
timony of  the  defendant  any  further  than  it  may  be  corrobo- 
rated by  other  credible  evidence  in  the  case.  Ilirschman  vs. 
The  Peo])le,  101  111.,  568. 

In  determining  the  weight  to  be  given  to  the  testimony  of 
the  different  witnesses,  you  should  take  into  account  the  inter- 
est or  want  of  interest  they  have  in  the  case,  their  manner  on 
the  stand,  the  probability  or  improbability  of  their  testimony, 
with  all  other  circumstances  before  you  which  can  aid  you  in 
weighing  their  testimony.  The  defendant  has  testified  as  a 
witness,  and  you  should  weigh  his  testimony  as  you  weigh 
that  of  any  other  witness.     Consider  his  interest  in  the  result 


63S  GENERAL   INSTRUCTIONS    IN    CRIMINAL    CASES. 

of  the  case,  his  manner,  and  the  probabih'ty  or  the  improba- 
bility of  his  testimony.  Anderson  vs.  The  State,  104  Ind., 
467. 

The  rule  of  law  which  throws  around  the  defendant  the 
presumption  of  innocence,  and  requires  the  state  to  establish, 
beyond  a  reasonable  doubt,  evej-y  material  fact  averred  in  the 
indictment,  is  not  intended  to  shield  those  who  are  actually 
guilty,  from  just  and  merited  punishment,  bnt  is  the  humane 
provision  of  the  law,  which  is  intended  f(:>r  the  protection  of 
the  innocent,  and  to  guard,  so  far  as  human  agencies  can,  against 
the  conviction  of  those  unjustly  accused  of  crime.  Anderson 
vs.  State,  104  Ind.,  467. 

§  14.  Testimony  of  the  Accused  Should  be  Considered  by  the 
Jury. — That  the  jury  have  no  right  to  disregard  the  testimony 
of  the  defendant  on  the  ground  alone  that  he  is  a  defendant, 
and  stands  charged  with  the  commission  of  a  crime.  The  law 
presumes  the  defendant  to  be  innocent  until  he  is  proved 
guilty;  and  the  law  allows  him  to  testify  in  his  own  behalf) 
and  the  jury  should  fairly  and  impartially  consider  his  testi- 
mony, together  with  all  the  other  evidence  in  the  case,  and  if, 
from  all  the  evidence,  the  jury  have  any  reasonable  doubt 
whether,  at  the  time  of  the  shooting  complained  of,  the  pistol 
was  accidentally  dischai-ged,  they  should  give  the  defendant 
the  benefit  of  the  doubt  and  acquit  him.  Moses  vs.  State,  58 
Ala.,  117;  Nelson  vs.  Yorce,  55  Ind.,  455;  Bressler  vs.  People, 
117  111.,  441. 

§  15.  Circumstantial  Evidence  Competent,  etc. — The  court  in- 
structs the  jury,  that  circumstantial  evidence  is  legal  and  com- 
petent in  criminal  cases;  and  if  it  is  of  such  a  character  as  to 
exclude  every  reasonable  hypothesis,  other  than  that  the  de- 
fendant is  guilty,  it  is  entitled  to  the  same  weight  as  direct 
testimony. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  deliberately  and  intentionally  shot 
John  Mann,  in  manner  and  form  as  charged,  and  as  he  was  pass- 
ing along  the  public  highway,  and  that  from  the  effects  of  such 
shooting  the  said  John  Mann  died,  as  charged  in  the  indict- 
ment, it  meters  not  that  such  evidence  is  circumstantial,  or 


GENERAL   INSTRUCTIONS    IN    CRIMINAL    CASES.  G39 

made  up  from  facts  and  circiirastancos,  provided,  the  jury  be- 
lieve such  facts  and  ciiciimstunces  pointing  to  his  guilt,  to  have 
been  proven,  beyond  a  reas^onable  doubt,  by  the  evidence. 
Schoolcraft  Y&.  Peojple,  111  III.,  277. 

§  16.  Circumstantial  Evidence  Defined. — The  court  further 
instructs  the  jury,  tliat  what  is  meant  by  circumstantial  evi- 
dence in  criminal  cases,  is  the  proof  of  such  facts  and  circum- 
stances connected  with  or  surrounding  the  commission  of  the 
crime  charged,  as  tend  to  show  the  guilt  or  innocence  of  the 
party  or  parties  charged;  and  if  these  facts  and  circumstances 
are  sufficient  to  satisfy  the  jury  of  the  guilt  of  the  defendants, 
or  any  of  them,  beyond  a  reasonable  doubt,  then  such  evidence 
is  sufficient  to  authorize  a  jury  in  finding  a  verdict  of  guilty,  as 
to  such  of  the  defendants  as  the  jury  are  so  satisfied,  beyond 
a  reasonable  doubt,  from  the  evidence,  are  guilty.  Law  vs. 
State,  33  Tex.,  37. 

§  17.  Facts  Must  all  be  Consistent  with  Guilt  and  Inconsistent 
witli  Innocence. — The  jury  are  instructed,  as  a  matter  of  law, 
that  where  a  conviction  for  a  criminal  offense  is  sought  upon 
circumstantial  evidence  alone,  the  people  must  not  only  show, 
by  a  preponderance  of  evidence,  that  the  alleged  facts  and  cir- ' 
cumstances  are  true,  but  they  must  be  such  facts_  and  circum- 
stances as  are  absolutely  incompatible,  upon  any  reasonable 
hypothesis,  with  the  innocence  of  the  accused,  and  incapable 
of  explanation,  upon  any  reasonable  hypothesis,  other  than 
that  of  the  guilt  of  the  accused.     1  Greenl.  on  Ev.,  §  12. 

In  criminal  cases,  where  the  prosecution  rely  upon  circum- 
stantial evidence  alone  for  a  conviction,  it  is  not  enough  that 
all  the  circumstances  proved  are  consistent  with  and  point  to 
the  defendant's  guilt.  To  authorize  a  conviction  upon  cir- 
cumstantial evidence  alone,  the  circumstances  must  not  only 
all  be  in  harmony  with  the  guilt  of  the  accused,  but  they 
must  be  of  such  a  character  that  they  cannot  reasonably  be 
true,  in  the  ordinary  nature  of  things,  and  the  defendant  be 
innocent.     Com.  vs.  Goodwin,  14  Gray,  55. 

To  authorize  a  conviction  on  circumstantial  evidence  alone, 
the  circumstances  should  not  only  be  consistent  with  the 
prisoner's  guilt,  but  they  must  be  inconsistent  with  any  other 


640  GENERAL   INSTRUCTIONS    IN    CRIMINAL    CASES. 

rational  conclusion,  or  reasonable  hypothesis,  and  snch  as  to 
leave  no  reasonable  doubt  in  the  minds  of  the  jury  of  the 
defendant's  guilt. 

§  18.  Degree  of  Certainty  Required. — The  rule  of  law  is,  that 
to  warrant  a  conviction  on  a  criminal  charge  upon  circumstan- 
tial evidence  alone,  the  circumstances  should  be  such  as  to 
produce  nearly  the  same  degree  of  certainty  as  that  which 
arises  from  direct  testimony,  and  sufficient  to  exclude  all  rea- 
sonable doubt  of  the  party's  guilt.  The  circumstances  ought 
to  be  of  such  a  nature  as  not  to  be  reasonably  accounted  for 
on  the  supposition  of  the  prisoner's  innocence,  but  be  per- 
fectly reconcilable  with  the  supposition  of  his  guilt.  People 
vs.  Padillia,  42  Cal.,  535, 

The  court  instructs  the  jury,  that  it  is  an  invariable  rule  of 
law,  that  to  warrant  a  conviction  for  a  ci'iminal  offense  upon 
circumstantial  evidence  alone,  such  a  state  of  facts  and  cir- 
cumstances must  be  thown  as  that  they  are  all  consistent  with 
the  guilt  of  the  party  charged,  and  such  that  they  cannot, 
upon  any  reasonable  theory,  be  true  and  the  party  charged  be 
innocent.  Beavers  vs.  State,  58  Ind.,  530;  Block  vs.  State,  1 
Tex.  App.,  368. 

§  19.  One  Fact  Inconsistent  with  Gnilt. — The  jury  are  in- 
structed, that  where  the  prosecution  relies  upon  circumstantial 
evidence  alone  for  a  conviction,  the  jury  must  be  satisfied,  be- 
yond a  reasonable  doubt,  that  the  crime  has  been  committed 
by  some  one,  in  manner  and  form  as  charged  in  the  indictment; 
and  then  they  must  not  only  be  satisfied  that  all  the  circum- 
stances proved  are  consistent  with  the  defendant's  having 
committed  the  act,  but  they  must  also  be  satisfied  that  the 
facts  are  such  as  to  be  inconsistent  with  any  other  rational 
conclusion,  than  that  the  defendant  is  the  guilty  person. 

If  there  is  any  one  single  fact  proved  to  the  satisfaction  of 
the  jury,  by  a  preponderance  of  evidence,  which  is  inconsistent 
with  the  defendant's  guilt,  this  is  sufficient  to  raise  a  reason- 
able doubt,  and  the  jury  should  acquit  the  defendant. 

In  order  to  justify  the  inference  of  legal  guilt,  from  cir- 
cumstantial evidence,  the  existence  of  the  inculpatory  facts 
must  be  absolutely  incompatible  with  the    innocence  of  the 


GENERAL   INSTEUCTFONS    IN    CRIMINAL    CASES.  641 

accnsod  npon  any  rational  theory,  and  incapable  of  explanation 
upon  any  other  reasonable  hypothesis  than  that  of  his  <4'uilt. 

§  20.  Direct  Evidence  not  Required. — The  court  further  in- 
structs the  jury,  that,  while  they  must  ba  conv  need  of  .the 
guilt  of  the  defendant,  beyond  a  reasonable  doubt,  fi-oni  the 
evidence,  in  order  to  warrant  a  conviction,  still,  ihe  pioof  need 
not  be  the  direct  evidence  of  persons  who  saw  the  offense 
committed;  the  acts  constituting  the  crime  may  be  proved  by 
circumstances. 

§  21.  Admission  in  Criminal  Cases — Must  be  all  Taken  To- 
getiier. — Wliere  the  verbal  admission  of  a  person,  charged  with 
crime,  is  offered  in  evidence,  the  whole  of  the  admission  must 
be  taken  togetlier;  as  well  that  part  which  makes  for  the  ac- 
cused, as  that  which  may  make  against  him;  and  if  the  part 
of  the  statement  which  is  in  favor  of  the  defendant  is  not  dis- 
proved, and  is  not,  apparently,  improbable  or  untrue,  when 
considered  with  all  the  other  evidence*  in  the  case,  then  such 
part  of  the  statement  is  entitled  to  as  much  consideration  from 
the  jury  as  any  other  part  of  the  statement. 

The  jury  are  instructed,  that  wdiere  evidence  is  given  tend- 
ing to  show  admissions  made  by  the  defendant  in  a  criminal 
case,  the  defendant  is  entitled  to  have  the  whole  of  the  state- 
ment or  admission  heard  and  considered  by  the  jury.  But 
the  jury  are  not  obliged  to  believe,  or  disbelieve,  all  of  such 
statement;  they  may  disregard  such  parts  of  it,  if  any,  as  are 
inconsistent  with  the  other  testimony,  or  which  the  jury  be- 
lieve, from  the  facts  and  circumstances  proved  on  the  trial, 
are  untrue,  Conner  vs.  State,  34  Texas,  659;  Roscoe's  Crim. 
Ev.,  55;  Riletj  vs.  State,  4  Tex.  App.,  538;  Eiland  vs.  State, 
52  Ala.,  322;  State  vs.  Ilollenscheit,  61  Mo.,  302. 

§  22.     Confessions  Must  be  Treated  Like  Other  Evidence. — If 

the  jury  believe,  from  the  evidence,  that  the  defendant  made 
the  confession,  as  alleged,  and  attempted  to  be  proved  in  this 
case,  the  jury  should  treat  and  consider  such  confession  ]  re- 
cisely  as  they  would  any  other  testimony;  and  hence,  if  the 
jury  believe  the  whole  confession  to  be  true  they  should  act 
npon  the  whole  as  true.  But  the  jury  may  believe  part  of  the 
41 


\/ 


642  GENERAL    INSTKUCTIONS    IN    CEIMINAL    CASES. 

testimony  and  reject  tlie  balance  if  tliej  see  sufficient  grounds, 
in  the  evidence,  for  so  doing;  the  jury  are  at  liberty  to  judge 
of  it  like  other  evidence,  in  view  of  all  the  circumstances  of 
the  case  as  disclosed  by  the  evidence.  Jacltson  vs.  The  Peo- 
ple, 18  111.,  269. 

§  23.  Confession  to  be  "Received  with  Caution. — The  court 
instructs  the  ]\xvy,  that  the  confessions  of  a  prisoner  out  of 
court  are  a  doubtful  s;^ecies  of  evidence,  and  should  be  acted 
upon  by  the  jury  with  great  caution,  and,  unless  they  are  sup- 
ported by  some  other  evidence  tending  to  show  that  the  pris- 
oner committed  the  crime,  they  are  rarely  sufficient  to  warrant 
a  conviction. 

§  24.     Confession  Wlien  Corroborated. — Upon  the  subject  of 

confessions  the  court  further  instructs  the  jury,  that  the 
credit  and  weight  to  be  given  to  them  depend  very  much 
upon  what  the  confessions  are;  if  the  crime,  itself,  as  charged, 
is  proved  by  other  testimony,  and  it  is  also  proved  that  the 
defendant  was  so  situated  tliat  he  had  an  opportunity  to  com- 
mit the  crime,  and  his  confessions  are  consistent  with  such 
proof  and  corroborative  of  it,  and  the  witness  who  swears  to 
the  confession  is,  apparently,  truthful,  honest  and  intelligent, 
then,  confessions  so  made  may  be  entitled  to  great  weight 
with  the  jury. 

If  the  jury  believe,  from  the  evidence,  that  the  confessions, 
or  admissions,  testified  to  by  the  w  tn  3ss  A.  B.  as  liaving 
been  made  to  him  by  the  defendant,  were  so  made,  and  that 
they  were  the  spontaneous  and  voluntary  act  of  the  defend- 
ant, and  if  the  jury  further  believe,  that  such  confessions 
have  been  corroborated  by  satisfactory  proof  that  the  {prop- 
erUj  loas  stolen)^  and  that  the  defendant  was  so  situated  that 
he  had  an  opportunity  to  commit  the  crime,  then,  such  con- 
fessions and  admissions  may  be  entitled  to  great  weight  in 
the  minds  of  the  jury;  and  if  the  jury  believe,  from  all  the 
evidence,  beyond  a  reasonable  doubt,  that  the  defendant  is 
guilty,  tlien  they  should  so  find  by  their  verdict. 

§  25.  When  Sufficient  to  Convict. — If,  in  tliis  case,  a  convic- 
tion is  asked,  on  the  ground  of  admissions,  unsupported  by 


GENERAL    INSTRUCTIONS    IN    CRIMINAL    CASES.  6-i3 

otlier  evidence,  such  admissions  or  confessions  should  be 
clear  and  unequivocal,  and  such  as  to  convince  the  jury,  beyond 
a  reasonable  doubt,  of  the  defendant's  guilt. 

If  the  evidence,  tending  to  show  admissions  of  guilt,  is  sus- 
tained by  evidence  of  other  facts,  then  such  admissions,  even 
if  not  unequivocal,  should  be  taken  into  consideration  with  all 
the  other  evidence  in  the  case,  by  the  jury,  and  allowed  such 
weight  as,  in  the  opinion  of  the  jury,  they  are  entitled  to. 

§  26.  Testimony  of  Accomplice. — That  the  witness  A.  B.  is 
what  is  known  in  law  as  an  accomplice;  and  that,  while  it  is  a  rule 
of  law  that  a  person  accused  of  crime  may  be  convicted  upon  the 
uncorroborated  testimony  of  an  accomplice,  still,  a  jury  should 
always  act  upon  such  testimony  with  great  care  and  caution, 
and  subject  it  to  careful  examination  in  the  light  of  all  the 
other  evidence  in  the  case  ;  and  the  jury  ought  not  to  convict 
upon  such  testimony  alone,  unless,  after  a  careful  examination 
of  such  testimony,  they  are  satisfied,  beyond  any  reasonable 
doubt,  of  its  truth,  and  that  they  can  safely  rely  upon  it. 
Best,  Evi.,  §  171;  1  Greenl.  Evi.,  §  38C. 

If  the  jury  believe,  from  the  evidence,  that  the  witness  A. 
B.  was  induced  to  become  a  witness,  and  testify  in  this  case, 
by  any  promise  of  immunity  from  punishment,  or  by  any  hope 
lield  out  to  him,  by  any  one,  that  it  would  go  easier  with  him 
in  case  he  disclosed  who  his  confederates  were,  or  in  case  he 
implicated  some  one  else  in  the  crime,  then,  the  jury  should 
take  such  fact  into  consideration,  in  determining  the  weight 
which  ought  to  be  given  to  his  testimony  thus  obtained,  and 
given  under  the  influence  of  such  promise  or  hope. 

§  27.  Fabrication  of  Testimony. — The  jury  are  insti'ucted, 
that  if  they  believe,  from  the  evidence,  that  the  accused  be- 
lieved that  the  circumstances  surrounding  him  were  calculated 
to  awaken  suspicion  against  him,  and  that  he  was  ignorant  of 
the  nature  and  course  of  criminal  proceedings,  and,  under 
such  belief,  was  induced  by  his  friends  to  fabricate  testimony, 
then,  the  jury  may  take  these  facts  into  consideration  in  con- 
sidering the  conduct  of  the  defendant  in  relation  to  fabricat- 
ing such  testimony,  and  in  determining  his  guilt  or  innocence. 
Toe  vs.  The  People,  49  111.,  410. 


64:4  GENERAL    INSTEUCTIONS    IN    CKIMINAL    CASES. 

§  28.  Contrailictorj'  and  Inconsistent  Statements. — If  the  jury 
find,  from  the  evidence,  that  the  accused,  at  or  about  the  time 
of  his  arrest,  made  false  and  contradictory  statements,  calcu- 
lated to  excite  suspicion  against  him,  still,  these  statements,  if 
they  can  reasonably  be  attributed  to  any  other  motive  or 
cause  than  that  of  a  consciousness  of  guilt  of  the  crime  charged 
in  the  indictment,  and  a  desire  to  conceal  it,  then  they  should 
be  so  attributed  and  explained,  and  in  such  case  they  should 
not  be  regarded  as  any  evidence  of  guilt  of  the  crmie 
charged. 

The  court  further  instructs  the  jury,  that  the  fact  that  wit- 
nesses disagree  in  minor  points  in  their  recollection  and  recital 
of  transactions  does  not  necessarily  militate  against  the  candor 
of  any  of  them.  It  may  only  indicate  a  failure  of  observation 
or  recollection.  Jurors  have  not  the  right  to  captiously  or 
unreasonably  disregard  the  testimony  of  witnesses,  but,  unless 
there  appears  something  which  indicates  a  lack  of  candor  or 
untruthfulness  on  the  part  of  the  witness,  the  testimony  of  all 
the  witnesses  should  receive  proper  and  candid  consideration 
by  -the  jury,  in  an  honest  discharge  of  their  sworn  duties. 
State  vs.  licDlvitt,  69  la.,  459. 

§  29.  One  AVitness  Suffifient — {Except  in  Treason  or  Per- 
jury).— The  court  instructs  the  jniy,  that  the  evidence  of 
one  credible  witness  swearing,  directly,  to  any  material  fact 
in  this  case,  if  uncontradicted  by  other  evidence,  or  by  facts 
and  circumstances  proven,  is  sufficient  proof  of  that  fact  for  the 
purposes  of  this  trial. 

§  30.  The  Precise  Crime  Charged  Must  be  Proved. — The  jury 
are  further  instructed,  that  if  the  evidence  leaves  a  reasonable 
doubt  in  the  mind  of  the  jury  whether  the  defendant  is  guilty 
of  the  precise  crime  with  which  lie  is  charged  in  the  indict- 
ment, then  the  jury  should  tind  the  defendant  not  guilty; 
although  the  evidence  may  show  conduct  of  no  less  tui-pitude 
than  the  crime  charged,  that  is  not  enough  to  authorize  a  con- 
viction in  this  trial.     Stuart  vs.  The  People^  T3  111.,  20. 

§  31.     Statements  of  Prosecuting  Attorney  not  Based  on  Evidence. 

— The  jury  are  instructed,  that  it  would  be  highly  improper 
and  wrong  for  them  to  regard  the  statements  of  the  prosecut- 


GENERAL    INSTRUCTIONS    IN    CRIMINAL    CASES.  045 

infr  attorney  that,  etc.,  as  entitled  to  any  weight  whatever  in 
this  ease.  And  tliis  is  true  of  any  and  all  other  statements  of 
his  that  are  not  based  on  the  evidence  in  the  case,  if  any  such 
have  been  made.     Ken7iedy  vs.  The  People,  40  111.,  4S8. 

The  court  further  instructs  the  jury,  that  the  allusions  and 
references  of  the  prosecuting  attorney  to  the  supposed  preva- 
lence of  crime  in  the  community,  should  in  no  way  influence 
or  prejudice  your  minds  against  the  defendant  in  this  case. 
Your  duty  is  diicharged  wlien  you  have  determined  his  guilt 
or  innocence  of  the  charge  contained  in  this  indictment,  and 
there  is  no  other  question  involved  in  the  case. 

§  32.  Reasonable  Doubt  Defined. — The  jury  are  instructed, 
that  the  reasonable  doubt  which  entitles  an  accused  to  acquittal 
is  a  doubt  of  guilt  reasonably  arising  from  all  the  evidence  in 
the  case.  The  proof  is  to  be  deemed  to  be  beyond  reasonable 
doubt  when  the  evidence  is  sufficient  to  impress  the  judgment 
of  ordinarily  prudent  men  with  a  conviction  on  which  they 
v/ould  act,  without  hesitation,  in  their  own  most  important 
concerns  or  affairs  of  life.  3  Greenlf.  on  Ev.,  §  29;  Com.  vs. 
Webster,  5  Cush.,  320. 

The  court  instructs  the  jury,  that  in  a  legal  sense  a  reason- 
able doubt  is  a  doubt  which  has  some  reason  for  its  basis;  it 
does  not  mean  a  doubt  from  mere  caprice  or  groundless  con- 
jecture; a  reasonable  doubt  is  such  a  doubt  as  the  jury  are  able 
to  give  a  reason  for.     3  Greenlf.  on  Evi.,  13th  Ed.,  §  29,  n.  2. 

The  court  instructs  the  jury,  that  a  reasonable  doubt,  within 
the  meaning  of  the  law,  is  such  a  doubt  as  would  cause  a  rea- 
sonable, prudent  and  considerate  man,  in  the  graver  and  more 
important  affairs  of  life,  to  pause  and  hesitate  before  acting 
upon  the  truth  of  the  matter  charged  or  alleged.  May  vs. 
The  People,  60  111.  119. 

The  court  instructs  the  jury,  that  in  considering  this  case 
you  should  not  go  beyond  the  evidence  to  hunt  for  doubts, 
nor  should  you  entertain  such  doubts  as  are  merely  chimerical 
or  based  upon  groundless  conjecture.  A  doubt,  to  justify  an 
acquittal,  must  be  reasonable,  and  arise  from  a  candid  and  im- 
partial consideration  of  all  the  evidence  in  the  case ;  and  then 
it  must  be  such  a  doubt  as  would  cause  a  reasonable,  prudent 
and  considerate  man  to  hesitate  and  pause  before  acting  in  the 


Q4:6  GENERAL    INSTELX'TIONS    IN    CRIMINAL    CASES. 

graver  and  more  important  affairs  of  life.  If,  after  a  careful 
and  impartial  consideration  of  all  the  evidence  in  tlie  case,  yon 
can  say  and  feel  that  you  have  an  abiding  conviction  of  the 
guilt  of  the  defendant,  and  are  fully  satisfied  of  the  trutli  of 
the  charge,  then  yon  are  satisfied  beyond  a  reasonable  doubt. 
Miller  vs.  The  People,  39  111.,  457;  People  vs.  Finley,  38 
Mich.,  4S2;  Spies  vs.  People,  12  ^.  E.  Eep.,  905;  State  vs. 
Pierce,  65  la.,  85. 

The  term  "reasonable  doubt,"  as  used  in  these  instrnctions, 
means  a  donbt  which  has  some  good  reason  for  it,  arising  out 
of  the  evidence  in  the  case  ;  such  a  doubt  as  you  are  able  to 
find,  in  the  evidence,  a  reason  for;  it  means  such  a  doubt  as 
would  cause  a  prudent  man  to  pause  and  hesitate  before 
accepting  as  true  and  acting  upon  any  mattei-s  alleged  or 
cliarged  in  the  graver  and  more  important  affairs  of  life.  As 
applied  to  evidence  in  criminal  cases,  it  means  an  actual  and 
substantial  doubt,  growing  out  of  the  unsatisfactory  nature  of 
the  evidence  in  the  case.  It  does  not  mean  a  doubt  whicli  arises 
from  some  mere  whim  or  vagary,  or  from  any  groundless  sur- 
mise or  guess,  and,  while  the  law  requii-esyou  to  be  satisfied, 
from  the  evidence,  of  the  defendant's  guilt,  beyond  a  reason- 
able doubt,  it,  at  tlie  same  time,  prohibits  you  from  going  out- 
side of  the  evidence  to  hunt  up  doubts  upon  which  to  acquit 
the  defendant.  In  arriving  at  your  verdict,  it  is  your  duty  to 
carefully  and  candidly  consider  the  entire  evidence  in  the 
case,  and  in  so  doing,  you  should  entertain  such  doubts  only 
as  arise  from  the  evidence,  and  are  reasonable,  as  defined  in 
these  instructions.  3  Greenleaf  on  Evidence,  §  29;  Common- 
wealth vs.  Webster,  5  Cush.,  320. 

§  33.  Duty  of  the  Jury  to  Determine  Doubts. — If,  after  a  care- 
ful comparison  and  candid  consideration  of  all  the  evidence  in 
the  case,  you  have  a  doubt  of  the  defendant's  guilt,  it  will  then 
be  your  duty  to  determine  whether  such  doubt  is  reasonable 
and  sufficient  in  law  to  acquit  the  defendant.  And,  if  after 
applying  the  law  defining  such  doubts,  as  laid  down  in  these 
instructions,  you  find  that  the  doubt  in  question  is  not  a  rea- 
sonable one,  then  it  will  not  b)  sufficient  in  law  to  acquit  the 
defendant.  A  doubt  to  justify  an  acquittal  must  be  a  reason- 
able one.  and  it  must  arise  from  a  careful  and  candid  investi- 


GENERAL   INSTRUCTIONS    IN    CRIMINAL    CASES.  647 

.^ation  of  all  the  evidence  in  tlie  case,  and  unless  the  d(Ji]ht  is 
a  reasonable  one  and  docs  so  arise  it  will  not  be  sutHcieut  in 
law  to  authorize  a  verdict  of  not  guilty. 

§  34.     Reasonable  Doubt  in  Circumstantial  Evidence. — The  law 

requiring  the  jury  to  be  satisfied  of  th^  defendant's  guilt  be- 
yond a  reasonable  doubt,  in  order  to  warrant  a  conviction 
does  not  require  that  you  should  be  satisfied  beyond  a  reason- 
able doubt  of  each  link  in  the  chain  of  circumstances  relied 
upon  to  establish  the  defendant's  guilt;  it  is  sufficient  if,  taking 
the  testimony  all  together,  you  are  satisfied  beyond  a  reason- 
able doubt  that  the  defendant  is  guilty.  Houser  vs.  State,  58 
Ga.,  78;  Jarrell  vs.  State,  58  Ind.,  293;  State  vs.  Jlayden^  45 
la.,  11;  Bressler  vs.  People,  117  111.,  422. 

§  35.  Attempt  to  Escape,  How  Considered. — Evidence  has 
been  introduced  as  to  an  attempted  escape  from  jail  by  the 
defendant  while  in  the  custody  of  the  sheriff  of  this  county, 
on  this  charge.  If  you  find,  from  the  evidence,  that  the  defend- 
ant did  thus  attempt  to  escape  from  custody,  this  is  a  circum- 
stance to  be  considered  by  you,  in  connection  with  all  the 
other  evidence,  to  aid  you  in  determining  the  question  of 
guilt  or  innocence.  Anderson  vs.  State,  4  JS^.  E.  R.,  63;  L04 
Ind.,  467. 

§  36,     Jury  Judges  of  the  Law  as  well  as  of  the  Facts — Illinois. — 

"If  the  jury  can  say,  upon  their  oaths,  that  they  know  the  law 
better  than  the  court  does,  they  have  the  right  to  do  so;  but 
before  assuming  so  solemn  a  responsibility  they  should  be  sure 
that  they  are  not  acting  from  caprice  or  prejudice;  that  they 
are  not  controlled  by  their  will  or  their  wishes,  but  from  a 
deep  and  confident  conviction  that  the  court  is  wrong  and  that 
they  are  right.  Before  saying  this  upon  their  oaths  it  is  their 
duty  to  reflect  whether  from  their  habits  of  thought,  their 
study  and  experience,  they  are  better  qualified  to  judge  of  the 
law  than  the  court.  If,  under  all  these  circumstances,  they 
are  prepared  to  say  that  the  court  is  wrong  in  its  exposition 
of  the  law,  the  statute  has  given  them  the  right."  Schnier 
vs.  The  People,  23  111.,  17;  see,  also,  Mullinix  vs.  The  Peo- 
ple, 76  III.,  211;  Spies  et  al.  vs.  The  People,  12  N".  E.  Rep., 
905—122  111.,  1. 


GJ:S  GENERAL    IKSTEUCTIONS    IN    CKIillXAL    CASES. 

IiKliaim. — In  this  case  you  are  the  sole  judges  of  the  law, 
and  the  right  to  determine  the  law  goes  to  this  extent:  that, 
even  if  all  the  facts  alleged  in  the  indictment  are  established 
by  the  evidence  beyond  a  reasonable  doubt,  you  have  still 
the  right  to  determine  whether  or  not  such  facts,  when  so 
established,  constitute  a  public  offense,  under  the  laws  of  this 
state,  and  if  you  determine  they  do  not,  you  have  the  right 
to  acquit  the  defendant.  You  are  not  bound  by  the  ins'.ruc- 
tions  given  you  by  the  court  as  to  the  law,  but  are  at  liberty 
to  disregard  such  instructions,  if  you  see  fit  to  do  so,  and  de- 
termine the  law  for  yourselves.  Anderson  vs.  State,  5  jS^.  E. 
R,  711. 

§  37.  Proof  of  an  Alibi. — One  of  the  defenses  interposed  by 
the  defendants,  in  this  case,  is  what  is  known,  in  law,  as  an 
aim,  that  is,  that  the  defendants  were  at  another  place  at  the 
time  of  the  commission  of  the  crime,  and  the  court  instructs 
the  jury,  that  such  a  defense  is  as  proper  and  as  legitimate,  if 
proved,  as  any  other,  and  all  the  evidence  bearing  upon  that 
point  should  be  carefully  considered  by  the  jury;  and  if  in 
view  of  all  the  evidence,  the  jury  have  any  reasonable  doubt 
as  to  whether  the  defendants  were  in  some  other  place  when 
the  crime  was  committed,  they  should  give  the  defendants  the 
benefit  of  the  doubt,  and  find  them  not  guilty.  Davis  vs. 
State,  5  Bax.  (Tenn.),  612;  Wileij  vs.  State,  5  Bax.,  662. 

§  38.     Alibi  Need  not  be  Proved  beyond  a  Reasonable  Donbt. — 

As  regards  the  defense  of  an  alibi,  the  jury  are  instructed,  that 
the  defendant  is  not  required  to  prove  that  defense  beyond  a 
reasonable  doubt  to  entitle  him  to  an  acquittal;  it  is  sutficient 
if  the  evidence  upon  that  point  raises  a  reasonable  doubt 
of  his  presence  at  the  time  and  place  of  the  eommi  sion  of 
the  crime  charged.  State  vs.  Harden,  46  la.,  623;  State  vs. 
Jaynes,  78  K  C,  504;  Iloioard  vs.  The  State,  50  Ind.,  190; 
State  vs.   Watso?i,  7  S.  C,  63. 

§  39.  Burden  of  Proof — Alibi. — The  defendants  claim,  as  one 
of  their  defenses,  what  is  known  in  law  as  an  alibi,'  that  is, 
at  the  time  the  robbery  with  which  they  are  charged  was 
being  committed  they  were  at  a  different  place,  so  that  they 
could  not  have  participated  in  its  commission. 


GENEEAL    INSTKUCTIONS    IN    CKIMINAL    CASES.  6i9 

The  burden  is  upon  cacli  defendant  to  prove  this  defense 
foi-  himself,  bj  a  preponderance  of  evidence;  that  is,  bj  the 
greater  and  superior  evidence. 

The  defense  of  alibi,  to  be  entitled  to  consideration,  must 
be  such  as  to  show  that,  at  the  very  time  of  the  commission  of 
the  crime  cliarged,  the  accused  was  at  another  place,  so  far 
awaj  or  under  such  circumstances  that  he  could  not  with  any 
ordinary  exertion  have  reached  the  place  where  the  crime  was 
committed  so  as  to  have  participated  in  the  commission  thereof. 

If  the  proof  of  alibi  fails  to  show  as  to  either  defendant  on 
trial,  you  will  not  consider  it  as  to  him  ;  but  if  it  does  so  show 
as  to  either,  you  will  give  it  full  consideration  as  to  the  de- 
fendant of  whom  it  so  shows.  State  vs.  Maker,  37  N.  W. 
Eep.  2;  2  Bish.  Crim.  Pro.,  §§  29-32;  MulUns  vs.  The 
People,  110  111.,  45. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  where 
the  people  make  out  such  a  case  as  would  sustain  a  verdict  of 
guilty,  and  the  defendant  offers  evidence,  the  burden  is  on 
him  to  make  out  his  defense,  and  as  to  an  alibi j  and  when 
the  proof  is  in,  then  the  primary  question  is  (the  whole  evi- 
dence being  considered,  both  that  given  for  the  defendant  and 
for  the  people),  is  the  defendant  guilty  beyond  a  reasonable 
doubt?  The  law  being  that  wlien  the  jury  have  considered  all 
the  evidence,  as  well  that  touching  the  question  of  the  alibi 
as  the  criminating  evidence  introduced  by  the  prosecution, 
then,  if  they  have  any  reasonable  doubt  of  the  guilt  of  the 
accused  of  the  offense  with  which  he  stands  charged,  then 
they  should  acquit — otherwise,  not.  Ackerson  vs.  The  People 
(111.),  16  K.  E.  Eep.,  847. 

§  40.  Doubt  as  to  Defenclant  or  Somebody  Else. — In  determin- 
ing the  question  as  to  whether  tlie  evidence  does  point  as 
strongly  to  the  guilt  of  the  {three)  unknown  men  testified  to 
by  the  witnesses,  A.  and  B.,  as  it  does  to  the  prisoners  at  the 
bar,  it  is  competent  for  the  jury,  and,  in  fact,  they  should  take 
into  consideration  the  fact,  if  proven  in  the  case,  that  a  few 
minutes  before  the  commission  of  the  burglary,  the  said  {three) 
unknown  men  were  near  the  place  where  the  crime  was  com- 
mitted; and  also  consider  whether  they  did  not,  then  and  there, 
have  the  same  opportunity  to  commit  such  crime  as  the  de- 
fendants did. 


'-\ 


650  GENERAL    INSTRUCTIONS    IN    CRIMINAL    CASES. 

The  court  instructs  tlio  jury,  that  before  they  can  convict 
the  defendant  in  this  case,  it  must  apj^ear,  from  the  evidence, 
beyond  a  reasonable  doubt,  that  the  defendant,  and  not  some- 
body else,  committed  the  offense  charged  in  the  indictment. 
It  is  not  sufficient  that  the  evidence  shows  that  the  defendant 
or  somebody  else  committed  the  crime,  nor  that  the  probabili- 
ties are  that  the  defendant  and  not  somebody  else  committed 
the  crime,  unless  those  probabilities  are  so  strong  as  to  re- 
move all  reasonable  doubt  as  to  whether  the  defendant  or  some 
one  else  is  the  guilty  party.    Lyoyis  vs.  The  People^  68  111.,  271. 

If,  from  a  consideration  of  all  the  evidence  in  this  case,  the 
jury  entertain  a  reasonable  doubt  as  to  whether  the  offense 
charged  was  committed  by  the  defendants  or  by  other  persons, 
the  jury  should  acquit;  and  the  same  rule  applies  as  to  the 
question  of  guilt  or  innocence  of  each  defendant;  that  is  to  say, 
that  if  the  evidence  leaves  the  jurors  in  reasonable  doubt  as  to 
any  one  defendant,  such  defendant  sliould  be  acquitted. 

The  jury  are  instructed,  that  it  is  a  rule  of  law  that  although 
it  may  be  positively  proved  that  one  of  two  or  more  persons 
committed  a  crime,  yet  if  there  is  any  reasonable  doubt  as  to 
which  is  the  guilty  party,  all  must  be  acquitted.  Campbell 
vs.  The  People,  16  111.,  1. 

§  41.  Proof  of  Identity. — Tlie  court  further  instructs  the 
jury,  that  to  justify  a  conviction  of  the  defendants,  their  iden- 
tity as  the  guilty  persons  must  be  proved,  beyond  every  rea- 
sonable doubt,  and  the  jury  are  not  bound  to  believe  that  the 
witness  was  able  to  identify  the  prisoners  with  certainty  be- 
cause he  swears  positively  to  their  identity;  and  the  jury  should 
not  so  believe,  if  they  themselves  are  satisfied,  from  the  cir- 
cumstances proved,  that  there  is  a  reasonable  doubt  as  to 
whether  the  witness  was  able  to  and  did  identify  the  defend- 
ants, or  any  of  them,  as  the  guilty  persons. 

So  far  as  regards  the  question  of  identity  of  the  defendants 
the  court  instructs  the  jury,  that  if  they  believe,  from  the 
evidence,  and  tlie  circumstances  proved,  that  there  is  reason- 
able doubt  whether  the  witness  might  not  be  mistaken  as  to 
their  identity,  then  before  the  jury  would  be  authorized  to 
convict  the  prisoners  the  corroborating  circumstances  tend'ng 
to  establish  their  identity  must  be  such  as,  with  other  testi- 


GENEEAL    INSTRUCTIONS    IN    CRIMINAL    CASES.  G51 

monj,  produces  a  degree  of  ceitainty  in  the  mind  of  the  jniy 
60  great  that  they  can  say  and  feel  that  they  have  no  reason- 
able doubt  as  to  the  identity  of  the  defendants. 

§  4^.  Good  Character  Presumed. — The  court  instructs  the 
jury,  that  the  character  of  an  accueed  person  is,  in  law,  pre- 
sumed to  be  good  nntil  the  contrary  appears  from  the  evi- 
dence, and  he  is  under  no  obligation  to  prove  a  good  character 
until  his  character  is,  in  some  manner,  attacked,  and  the  jury 
will  not  be  justified  in  drawing  any  inference  unfavorable  to 
the  defendant,  from  the  fact  he  has  offered  no  proof  as  to 
good  character  in  this  case. 

§  43.  Former  Good  Character  Proved. — If  the  jury  believe, 
from  the  evidence,  that  while  the  defendant  A.  resided  in 
the  town  of  C.  his  general  reputation  and  character  for  honesty 
were  good,  then  the  presumption  of  law  is,  in  the  absence  of 
proof  to  the  contrary,  that  that  reputation  has  continued  good 
down  to  the  time  of  the  commission  of  the  offense  chai-ged  in 
this  indictment.  And  the  said  defendant  was  under  no  obli- 
gation to  introduce  further  proof  on  the  point  of  good  char- 
acter, unless  he  saw  fit  so  to  do,  and  his  omission  to  introduce 
further  testimony  upon  that  point  should  not  be  regarded  by 
the  jury  as  a  circumstance  against  him,  or  as  tending,  in  any 
degree,  to  prove  his  guilt  in  this  case. 

§  44.  Omission  to  Prove  Good  Character. — That  the  law  not 
only  presumes  that  every  person  is  Innocent  until  he  is  proven 
to  be  guilty,  but  the  law  also  presumes  that  a  person  has  a  good 
character  and  re]5utation  for  {honesty)  until  the  contrary  is 
shown  by  the  evidence ;  and  the  jury  have  no  right  to  con- 
sider the  omission  on  the  part  of  the  defendants,  E..  and  H.,  to 
introduce  evidence  of  good  character  as  a  circumstance  against 
them,  or  as  tending  to  show  their  guilt  in  this  case.  1  Whar- 
ton on  Crim.  Law,  §  637;  State  vs.  Tozier,  49  Me.,  404; 
People  vs.  Bodine,  1  Denio,  2S1. 

§  45.  Proof  of  Good  Character — Effect  of — The  jury  are  in- 
structed, that  in  all  criminal  trials  where  the  prosecution 
depends  upon  circumstantial  evidence  alone,  which  is  not  con- 


652  GENERAL   INSTEUCTIONS    IN    CEIMINAL    CASES. 

elusive  in  its  cliaracter,  previous  good  character  on  the  part 
of  the  accused,  if  proved,  is  entitled  to  great  weight  in  favor 
of  innocence. 

That  upon  a  prosecution  for  burglary  or  larceny,  proof  of 
previous  good  character  for  honesty,  on  the  part  of  the  party 
charged,  is  proper  evidence  to  be  considered  by  the  jury,  in 
connection  with  all  the  other  evidence,  in  determining  the  guilt 
or  innocence  of  the  party  charged ;  and  if  the  case  is  otherwise 
doubtful,  satisfactory  proof  of  previous  good  character  will 
amount  to  complete  defense. 

That  where  there  is  a  serious  conflict  in  the  testimony  as  to 
the  commission  of  an  offense  like  that  charged  in  this  case, 
evidence  of  the  previous  good  character  of  the  defendant,  as 
to  such  offenses,  should  be  considered  by  the  jury,  in  connec- 
tion with  all  the  other  evidence  given  on  the  trial,  in  determin- 
ing whether  the  defendant  would  be  likely  to  commit,  and  did 
commit,  the  offense  in  question.     Kistler\&.  State,  54  Ind.,400. 

That  in  doubtful  cases,  evidence  of  good  chai-acter  is  con- 
clusive in  favor  of  the  party  accused;  and  if,  from  the  evidence, 
you  find  that  the  facts  and  circumstances  proved  and  relied 
upon  to  establish  the  defendant's  guilt  are  in  doubt,  or  that  the 
intent  of  the  defendant  to  commit  the  crime  is  in  doubt,  then, 
if  the  prisoner  has,  by  evidence,  satisfied  you  that  he  was  a  man 
of  good  character  up  to  the  time  of  the  alleged  offense  in  this 
case,  the  presumption  of  law  is,  that  the  alleged  crime  is  so 
inconsistent  with  the  former  life  and  character  of  the  defend- 
ant that  he  could  not  have  intended  to  commit  such  a  crime, 
and  it  would  be  your  duty  to  give  the  defendant  the  benefit 
of  that  presumption,  and  acquit  him. 

§  46.  Proof  of  Good  Character  Always  Proper. — The  court  in- 
structs the  jury,  that  evidence  of  previous  good  character  is 
competent  evidence  in  favor  of  a  party  accused,  as  tending  to 
show  that  he  would  not  be  likely  to  commit  the  crime  alleged 
against  him. 

And  in  this  case,  if  the  jury  believe,  from  the  evidence, 
that  prior  to  the  commission  of  the  alleged  crime  the  defend- 
ant had  always  borne  a  good  character  {for  honesty)  among 
his  acquaintances  and  in  the  neighborhood  where  he  lived, 
then  this  is  a  fact  proper  to  be  considered  by  the  jury,  with 


GENERAL    INSTRUCTIONS    IN    CRIMINAL     CASES.  653 

all  the  other  evidence  in  the  case,  in  dcteruiinlng  the  question 
whether  the  witnesses  who  have  testified  to  facts  tending  to 
criminate  him  have  been  mistaken  or  have  testified  falsely  or 
truthfully;  and  if,  after  a  careful  consideration  of  all  the  evi- 
dence in  the  case,  including  that  hearing  iijion  his  previous 
good  character,  the  jury  entertain  any  reasonable  doubt  of  the 
defendant's  guilt,  then  it  is  their  sworn  duty  to  acquit  him. 
Lee  vs.  State,  2  Tex.  App.,  338;  3  Greenl.  Ev.,  §  2.5-26;  1 
Wliart.  Crim.  Law,  §  636, -643;  Stewart  vs.  The  State,  22 
Ohio,  477. 

§  47.     Guilt  Proved  Notwithstan.lin^  Proof  of  Good  Character, — 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  committed  the  crime  in  question,  as 
charged  in  the  indictment,  it  will  be  your  sworn  duty,  as 
jurors,  to  find  the  defendant  guilty,  even  though  the  evidence 
may  satisfy  your  minds  that  the  defendant,  previous  to  the 
commission  of  the  alleged  crime,  had  sustained  a  good  repu- 
tation and  character  for  honesty.  Hirschman  vs.  The  People, 
101  111.,  575. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  the 
defendant  has  put  in  evidence  his  general  reputation  for  hon- 
esty and  integrity;  that  such  evidence  is  permissible  under  the 
law,  and  is  to  be  by  the  jury  considered  as  a  circumstance  in 
this  case.  But  the  court  further  instructs  the  jury,  that  if, 
from  all  the  evidence  in  this  case,  they  are  satisfied  beyond  a 
reasonable  doubt  of  the  guilt  of  the  accused,  then  it  is  the  duty 
of  the  jury  to  find  him  guilty,  notwithstanding  the  fact  that 
heretofore  the  accused  has  borne  a  very  good  character  for 
honesty. 


CHAPTER  LI. 

ACCESSOKIES. 


Sec.     1.  Accessory  defined. 

2.  Accessory  defined — Illinois. 

3.  Aiding  or  abetting  may  be  by  words  or  acts. 

4.  Concert  of  action  need  not  be  by  express  agreement. 

5.  Aiding  or  abetting  assault. 

6.  Aiding  or  abetting  murder. 

7.  Advising  or  encouraging,  not  being  present. 

8.  Aiding  or  abetting  in  burglary. 

9.  Present,  but  not  aiding  or  assisting. 
10.  Any  one  or  more  may  be  found  guilty. 

Note. — At  common  law,  persons  participating  in  a  crime  are  cither  prin- 
cipals or  accessories.  If  the  crime  is  felony,  they  are  alike  felons.  Princi- 
pals are  such  either  in  the  first  or  second  degree.  Principals  in  the  first 
degree  are  those  who  are  the  immediate  perpetrators  of  the  act.  Principals 
in  the  second  degree  are  those  who  did  not  with  their  own  hands  commit 
the  act,  but  who  were  present,  aiding  and  abetting  it. 

An  accessory  before  the  fact  is  he  who,  being  absent  at  the  time  the 
felony  is  committed,  does  yet  procure,  counsel  or  comnjand  another  to  com- 
mit a  felony.  In  many,  if  not  most,  of  the  states,  an  accessory  before  the 
fact  is  by  statute  declared  to  be  in  law,  as  he  is  in  reason,  either  actually  or 
substantially  a  principal. 

§  1,  Accessory  Defined, — The  court  instructs  the  jury,  that  an 
accessory  is  one  who  stands  by  and  aids,  abets  or  assists,  or  who, 
not  being  present  aiding,  abetting  or  assisting,  hath  advised, 
enconraged,  aided  or  abetted  the  perpetration  of  the  crime 
charged.  lie  who  thus  aids,  abets,  assists,  advises  or  enconr- 
ages,  is  considered  a  principal  and  pnnished  accordingly. 
Iowa  Code,  §  4314 ;  State  vs.  Hessian^  58  la,,  68. 

§  2,  Accessory  Defined— Illinois,— R,  S.,.  Cli.  38,  §  274,— The 
court  instructs  the  jury,  as  a  matter  of  law,  that  an  accessory 
is  he  who  stands  by,  and  aids,  abets  or  assists,  or  who,  not 
being  present  aiding,  abetting  or  assisting,  hath  advised,  en- 
couraged, aided  or  abetted  the  perpetration  of  the  crime. 
He  who  thus  aids,  abets,  assists,  advises,  or  encourages,  shall 

(654) 


ACCESSOKIES.  655 

be  considered  as  principal  and  punished  accordingly.  Every 
such  accessory,  when  a  crime  is  committed  within  or  without 
this  state,  by  his  aid  or  procurement  in  this  state,  may  be 
indicted  and  convicted  at  the  same  time  as  the  principal,  or 
before  or  after  his  conviction,  and  whether  the  princi})al  is 
convicted  or  amenable  to  justice  or  not,  and  punished  as  prin- 
cipal.    Coates  vs.  The  People,  72  III.,  303, 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  deliberately  and  intentionally  shot 
*  *  *  with  a  loaded  revolver,  as  charged  in  the  indictment, 
and  that  the  defendant  A.  B.  in  any  way  or  maimer  aided, 
advised  or  encouraged  such  shooting,  then  the  jury  should 
find  the  defendants  both  guilty;  provided,  the  jury  further 
find,  from  the  evidence,  beyond  a  reasonable  doubt,  that  such 
shooting  was  not  necessary,  and  did  not  reasonably  appear  to 
be  necessary  to  save  their  own  lives,  or  to  prevent  them,  or 
either  of  them,  receiving  great  bodily  harm.  Smith  vs.  The 
People,  T4  111.,  144. 

§   3.     Aiding,  Advising,  etc.,  may  be  by  Words  or  Act?.- — The 

court  instructs  the  jury,  that  the  advising  or  encouraging  that 
may  make  one  an  accessory  i)  crime  need  not  be  by  words. 
It  may  be  by  words  or  acts,  signs  or  motions,  done  or  inade  for 
the  purpose  of  encouraging  the  commission  of  the  crime. 
Brennan  vs.  The  People,  15  111.,  511. 

§  4.     Concert  of  Action  Need  not  be  by  Express  Agreemeiit. — 

The  jury  ai-e  instructed,  that  while  the  law  requires,  in  order 
to  find  all  the  defendants  guilty,  that  the  evidence  should 
prove,  beyond  a  reasonable  doubt,  that  they  all  acted  in  concert 
in  the  commission  of  the  crime  charged,  still  it  is  not  necessary 
that  it  should  be  positively  proven  that  they  all  met  together 
and  agreed  to  commit  the  crime;  such  concert  may  be  ])roved 
by  circumstances;  and  if,  from  all  the  evidence,  the  jury  are 
satisfied,  beyond  a  reasonable  doubt,  that  the  crime  was  com- 
mitted by  the  defendant,  and  that  they  all  acted  together  in 
the  commission  of  the  crime,  each  aiding  in  his  own  way,  this 
is  all  the  law  requires  to  make  them  all  equally  guilty.  Mil- 
ler vs.  The  People,  39  111.,  457. 


656  ACCESSOKIES. 

§  5.  Aiding  or  Abetting  Assanlt. — TLe  court  instructs  tlie 
jury,  that  the  rule  of  law  is  that,  as  to  each  of  the  defendants; 
in  order  to  warrant  a  verdict  of  guilty  as  to  him,  it  must 
appear,  from  the  evidence,  that  an  assault  was  committed,  in 
manner  and  form  as  charged  in  the  indictment,  and  that  he 
was  present,  taking  part  in  the  assault,  or  was  aiding  and  abet- 
ting in  tlie  same,  or  that  he  had  advised  or  encouraged  the 
commission  thereof. 

And  in  passing  u'pon  the  guilt  or  innocence  of  each  one  of 
the  defendants,  if  the  evidence  fails  to  establish,  beyond  a 
reasonable  doubt,  that  he  was  present,  taking  part  in,  or  aiding 
or  abetting  the  assault,  or  if  he  was  not  present,  that  he  had 
advised  or  encouraged  the  same,  then  as  to  such  defendant, 
the  verdict  should  be  not  guilty. 

If  the  jury  believe,  from  tae  evidence,  beyond  a  reasonable 
doubt,  that  any  one  or  more  of  the  defendants  attempted  to 
kill  or  murder  the  said  A.  B.,  in  manner  and  form  as  charged 
in  the  indictment,  and  that  any  one  or  more  of  the  other  de- 
fendants now  on  trial,  with  the  intent  only  to  commit  an  assault 
and  battery,  and  not  to  murder  the  said  A.  B.,  joined  in  the 
attempted  assault,  and  combined  with  those  who  did  so  intend 
to  murder,^  to  assault  and  beat  th3  said  A.  B.,  then  all  who  so 
combined  and  aided  in  the  attempt  to  commit  said  assault 
would  be  guilty  of  an  assault  with  an  intent  to  kill  and  mur- 
der, in  manner  and  form  as  charged  in  the  indictment. 

§  6.  Aiding  or  Abetting  Murder. — The  court  further  instructs 
the  jury,  that  if  they  believe,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  the  siiid  A.  B.  was  unlawfully  killed, 
with  malice  aforethought,  in  manner  and  form  as  charged  in 
the  indictment,  and  that  the  defendant  C.  D.  was  present 
and  in  any  manner  aided,  abetted  or  assisted  in  such  killing 
or  advised  or  encouraged  the  same,  then  the  jury  should  find, 
him  guilty,  although  they  may  believe,  from  the  evidence, 
that  some  other  person  fired  the  fatal  shot  (struck  the  fatal 
blow),  and  although  no  motive  on  his  part  for  the  killing  has 
been  shown. 

If  the  evidence,  facts  and  circumstances,  proved  on  the  trial, 
convince  the  jury,  beyond  a  reasonable  doubt,  that  the  said  A. 
B.  was  unlawfally  killed,  with  malice  aforethought,  in  manner 


ACCESSORIES.  657 

and  form  as  charged  in  tlie  indictment,  and  that  the  defendant 
C.  D.  was  present,  and  in  any  manner  aided,  assisted  or 
abetted  such  killing,  then  the  jury  should  find  him  guilty, 
though  there  was  no  human  eye  witnessed  the  fact  of  such 
killing. 

§  7.  Advising  and  Encouraging,  not  Being  Present. —  The 
court  instructs  the  jury,  that  if  they  believe,  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that  any  one  or  more  of  the 
defendants  is  guilty  of  the  offense  cliarged  in  the  indict- 
ment, and  that  any  other  of  the  defendants  stood  by  at 
the  time  and  aided,  abetted  or  assisted  in  the  commission  of 
the  crime,  or  who,  not  being  present,  had  advised  or  encour- 
aged the  commission  of  the  same,  then  such  other  persons,  so 
aiding,  abetting,  advising  or  encouraging,  are,  in  law,  guilty 
as  principals,  and  the  jury  should  so  find  by  their  verdict. 
Sharp  vs.  State,  6  Tex.  App.,  650;  State  vs.  Hamilton,  13 
Nev.,  386;  State  vs.  Maloij,  44  la.,  104. 

§  8.  Aiding  and  Abetting  in  Burglary. — If  the  jury  believe, 
from  the  evidence,  beyond  a  reasonable  doubt,  that  a  burglary 
was  committed,  as  charged,  and  that  the  defendant  A.  B. 
was  standing  by,  aiding,  abetting,  assisting  or  encouraging 
the  commission  of  the  crime,  then  it  is  the  duty  of  the  jury 
to  find  him  guilty,  in  manner  and  form  as  charged  in  the 
indictment. 

§  9.  Present,  but  not  Aiding  or  Assisting. — Though  the  jury 
may  believe,  from  the  evidence,  that  the  said  A.  B.  was  mur- 
dered at  tho  time  and  place  in  question,  and  that  the  defend- 
ant C.  D.  was  present  at  the  time  of  such  murder,  still,  if  the 
jury  are  not  satisfied,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  said  C.  D.  was  previously  aware  of  the  purpose 
to  commit  such  murder,  or  that  he,  in  some  way,  aided,  abetted 
or  assisted  in  the  killing,  or  advised  or  encouraged  it,  then 
they  should  find  the  said  C.  D.  not  guilty,  though  they  further 
believe,  from  the  evidence,  that  he  subsequently  failed  to  dis- 
close the  killing,  or  even  concealed  the  same.  State  vs.  Maloy^ 
44  la.,  104. 
42 


658  ACCESSORIES. 

§  10.  Any  one  or  More  maj'  be  Found  Guilty. — The  court  in- 
structs the  jury,  that  if,  from  a  consideration  of  all  the  facts 
and  circumstances  detailed  in  evidence,  the  jury  believe,  from 
the  evidence,  beyond  a  reasonable  doubt,  that  the  defendants, 
or  any  one  or  more  of  them,  are  guilty  of  the  crime  charged 
in  the  indictment,  they  should  so  find,  by  their  verdict,  as  to 
each  particular  defendant.  It  is  not  necessary  to  find  all  the 
defendants  guilty  in  order  to  find  any  one  or  more  of  them 
guilty. 


CHAPTEH  LII. 

ASSAULTS. 


ASSAULT  WITH  INTENT  TO  COMMIT  MUEDER. 

Sec.     1.  Assault  defined. 

2.  Must  be  such  as  would  be  murder  if  death  had  ensued. 

3.  Person  presumed  to  have  intended  the  natural  consequences,  etc. 

4.  Reckless  shooting — Wanton  injury. 
6.  The  intent  must  appear. 

6.  The  intention  to  kill  must  exist. 

7.  Circumstances  showing  deliberation. 

8-  The  intent  may  be  proved  by  circumstances. 

9.  A  blow  in  the  heat  of  passion,  etc. 

10.  Incapable  of  forming  intent  from  drunkenness. 

11.  The  intent  must  be  proved  beyond  a  reasonable  doubt. 

12.  The  verdict  may  be  for  an  assault  with  a  deadly  weapon. 

13.  May  find  defendant  guilty  of  assault  with  intent  to  commit  man- 

slaughter. 

ASSAULT  WITH  A  DEADLY  WEAPON. 

14.  Assault  with  a  knife. 

15.  Proof  of  instrument  of  the  same  kind  sufficient. 

16.  What  sufficient  to  prove. 

17.  Wliat  necessary  to  prove. 

18.  No  crime  without  intent. 

19.  Presumption  of  intent  may  be  rebutted. 

20.  A  deadly  weapon  defined. 

ASSAULT  WITH  INTENT  TO  COMMIT  MUKDER. 

§  1.  Assault  Defined. — The  court  instructs  the  jury,  that  an 
assault  is  an  unlawful  attempt,  coupled  with  a  present  ability, 
to  commit  a  violent  injury  on  the  person  of  another.  And  in 
this  case,  unless  the  jury  believe,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  the  defendant  made  an  attempt  to  shoot 
the  witness  A.  B.  with  a  loaded  pistol  or  revolver,  intending 
to  shoot  him,  and  with  a  then  present  ability  to  shoot  him, 
then  the  jury  should  find  the  defendant  not  guilty. 

(659) 


660  ASSAULTS. 

§  2.     Must  be  Such  as  Would  be  Murder  if  Death  had  Ensued. — 

In  order  to  justify  a  verdict  of  guilty  of  the  crime  of  an  assault 
with  intent  to  commit  murder,  the  facts  and  circumstances 
])roved  in  the  case  must  be  such  that  if  death  had  resulted 
from  the  shooting,  the  jury  would  have  found  the  defendant 
guilty  of  willful  murder.  Kuij  vs.  Stat'',  21  Ga.,  220;  Stale 
vs.  Malcomh,  8  la.,  413 ;  Sharp  vs.  State,  19  Ohio,  379. 

§   3.     Presumed  to  Intend  the  Natural  Consequences,  etc. — The 

jury  are  instructed,  that  the  natural  and  probable  consequences 
of  every  act  deliberately  done  by  a  person  of  sound  mind,  are 
presumed  to  have  been  intended  by  tlie  author  of  such  act. 
And  if  the  jury  believe,  from  the  evidence,  beyond  a  reason- 
able doubt,  that  the  defendant  did  shoot  the  said  A.  B.,  as 
charired  in  tlie  indictment,  and  that  the  natural  and  ordinary 
consequences  of  such  shooting  would  be  the  death  of  the  said 
A.  B.,  then  the  presumption  of  law  is  that  the  defendant  did 
shoot  the  said  A.  B.  with  intent  to  kill  him;  and  if  the  shoot- 
ing was  done  with  malice  aforethought,  either  expressed  or 
implied,  as  explained  in  these  instructions,  the  jury  should 
find  the  defendant  guilty  of  an  assault  with  an  intent  to  commit 
murder. 

§  4.  Reckless  Shooting — Wanton  Injury. — If  the  jury  believe, 
from  the  evidence,  beyond  a  reasonable  doubt,  that  the  de- 
fendant pointed  the  gun  at  the  said  A.  B.,  and  discharged  the 
same,  either  with  malice  aforethought,  or  with  a  reckless  and 
total  disregard  of  human  life,  and  that  the  use  of  the  said 
weapon,  as  used  by  the  said  defendant,  was  likely  to  kill  the 
said  A.  B.,  then  the  said  defendant  is  guilty  of  an  assault  with 
an  intent  to  commit  murder. 

§  5.  Intent  Must  Appear. — Before  the  jury  can  find  the  de- 
fendant guilty  of  an  assault  with  intent  to  commit  murder, 
the  jury  must  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  shot  the  said  A.  B.  under  such  cir- 
cumstances as  manifest  a  deliberate  intention  unlawfully  to 
take  away  the  life  of  said  A.  B.;  or  else,  under  circumstances 
showing  that  no  considerable  provocation  for  the  assault  ex- 
isted, or  where  all  the  circumstances  of  the  transaction  show 


ASSAULTS.  661 

an  abandoned  and  malignant  heart  on  the  part  of  the  defend- 
ant at  the  time. 

Before  the  jnrj  can  convict,  under  the  indictment  in  this 
case,  they  must  be  satisfied,  from  the  evidence,  beyond  a  rea- 
sonable doubt,  that  the  defendant  intended  to  murder  the  prose, 
cuting  witness — that  he  had  this  intent  at  the  time  of  the  firing 
and  that  he  fired  the  shot  without  any  reasonable  apprehension 
of  receiving  from  the  prosecuting  witness  any  great  bodily 
harm;  or  else,  where  there  was  no  considerable  provocation, 
or  where  all  the  circumstances  show  an  abandoned  and  malig- 
nant heart.     2  Bish.  on  Crim.  Law.,  §  759. 

§  6.  Intention  to  Kill  Must  Exist. — The  jury  are  instructed, 
that  in  order  to  convict  the  defendant  of  an  assault  with 
intent  to  murder  the  said  A.  B.,  it  is  necessary  for  the  people  to 
prove  that  the  defendant  maliciously  and  deliberately  formed 
an  intention  to  kill  the  prosecuting  witness  A.  B.,  and  that 
with  such  deliberately  formed  intention,  he  attempted  to  carry 
such  intention  into  effect,  and  was  only  prevented  from  so 
doing  by  some  interposition  not  of  his  own  will;  or  else,  under 
circumstances  showing  that  there  was  no  considerable  provo- 
cation for  the  attack  on  the  said  A.  B.,  or  where  all  the  cir- 
cumstances show  an  abandoned  and  malignant  heart,  and 
this  must  be  established  beyond  a  reasonable  doubt;  and  if  the 
prosecution  have  failed  so  to  prove  these  matters,  then  the 
jury  must  acquit  the  defendant  of  the  ofl^ense  of  an  assault 
with  an  intent  to  commit  murder.  2  Whar.  on  Crim.  Law, 
G.  1279;  1  Bish.  on  Crim.  Law,  §  492. 

§  7.  Facts  Showing  Deliberation. — That  to  reduce  an  unlaw- 
ful killing  of  a  human  being  from  the  crime  of  murder  to  that 
of  manslaughter,  on  the  ground  that  it  was  not  done  with 
malice  aforethought,  it  must  appear,  from  the  evidence,  that  it 
was  done  under  such  a  sudden  impulse  of  passion  as  was  ap- 
parently irresistible,  provoked  by  a  serious  and  highly  pro- 
voking injury  upon  the  person  of  defendant,  or  by  an  attempt 
by  the  deceased  to  commit  a  seriously  personal  injury  upon 
defendant. 

And  if  the  jury  believe,  from  the  evidence,  beyond  a  rea- 
sonable doubt,  that  the  defendant,  after  the  {alleged  provoca- 


662  ASSAULTS. 

tioii)  was  given,  deliberately  went  to  the  lionse,  some dis- 
tant, and  got  bis  gun,  and  returned  witb  it,  and  sbot  the  said 
A.  B,,  as  cbarged  in  tbe  indictment,  tben  malice  is  presumed, 
unless  its  presence  is  rebutted  by  the  other  evidence  in  the 
case;  and  the  defendant  is  also  presumed  to  have  intended  the 
natural  consequences  of  his  acts,  and  in  such  case,  if  death  had 
ensued,  it  would  have  been  murder,  and  the  jury  should  find 
the  defendant  guilty  of  an  assault  with  intent  to  murder. 

§  8.  Intent  may  be  Proved  by  Circumstances. — That  to  con- 
stitute  the  offense  charged  in  this  case,  the  intent  alleged  in 
the  indictment  is  necessarily  to  be  proved,  but  direct  and 
positive  testimony  is  not  necessary  to  prove  the  intent ;  it  may 
be  inferred  from  the  evidence,  if  there  are  any  facts  proved 
which  satisfy  the  jury,  beyond  a  reasonable  doubt,  of  its  ex- 
istence.    Roberts  vs.  The  People,  19  Mich,,  401, 

If  the  jury  are  satisfied,  from  the  evidence,  beyond  a  reason- 
able doubt,  that  the  defendant  at  and  within  this  county  with- 
in the  period  of,  etc.,  intentionally  and  unlawfully  shot  a  pistol 
loaded  with  powder  and  leaden  ball,  at  and  against  the  said  S, 
C,  then  another  question  for  you  to  determine  will  be  whether 
or  not  the  defendant,  at  the  time  he  tired  the  said  pistol,  in- 
tended to  take  the  life  of  the  said  C;  and  in  determining  this 
question  it  will  be  proper  for  you  to  consider  the  distance  that 
the  defendant  was  from  C.  at  the  time  he  fired  the  pistol,  the 
character  of  the  weapon  used,  the  manner  in  which  it  was 
loaded  and  used,  and  whether  it  was  such  a  weapon  as  would 
be  likely  to  take  the  life  of  a  man  at  the  distance  the  defend- 
ant was  from  C,  used  in  the  manner  in  which  it  was  used  at 
the  time  the  shot  was  fired,  so  far  as  these  matters  appear  from 
the  evidence. 

You  may  also  take  into  consideration  whether  it  is  true  that 
the  defendant  made  any  declaration  or  statement  at  the  time 
or  immediately  before  the  shooting,  as  to  what  his  intentions 
were,  and  also  his  testimony  regarding  his  intentions  at  the 
time  of  the  shooting,  and  also  the  testimony  regarding  the 
defendant's  character  and  reputation  as  a  peaceable  and  quiet 
citizen,  and  if,  after  considering  all  these  matters  together  with 
all  the  other  evidence  in  the  case,  you  believe,  from  the  evi- 
d£>nce,  beyond  a  reasonable  doubt,  that  the  defendant  intention- 


ASSAULTS.  663 

ally  and  unlawfully  sliot  tlie  said  pistol  at  and  against  the  said 
C,  with  the  intention  thereby  to  take  the  life  of  the  said  C, 
then  you  should  lind  the  defendant  guilty. 

The  jury  are  further  instructed  that  they  may  take  into  con- 
sideration whether  it  is  true  that  the  defendant  made  any  dec- 
laration or  statement  at  the  time,  or  immediately  before  the 
shooting,  as  to  what  his  intentions  were,  and  also  his  testimony 
regarding  his  intentions  at  the  time  of  the  shooting,  if  any, 
and  also  the  te  timony  regarding  the  defendant's  character  and 
reputation  as  a  peaceable  and  quiet  citizen;  and  if,  after  con- 
sidering all  these  matters,  together  with  all  the  other  evidence 
in  the  case,  the  jury  entertain  any  reasonable  doubt  as  to 
whether  the  defendant  intentionally  shot  the  said  pistol  at  or 
against  the  said  C,  or  if  they  entertain  any  reasonable  doubt 
s  to  whether  the  defendant  fired  the  pistol  with  the  intention 
thereby  to  take  the  life  of  the  said  C,  then  the  defendant  is 
not  guilty  of  an  assault  with  intent  to  murder.  Rollins  vs. 
State,  62  Ind.,  46. 

§  9.     Blow  in  Heat  of  Passion  without  Intention  to  Kill. — If  the 

jury  believe,  from  the  evidence,  that  at  the  time  of  the  affray 
between  the  parties,  a  sudden  quarrel  arose,  and  that  the  blow 
was  given  in  the  heat  of  passion,  and  without  premeditation, 
and  without  any  intention  to  kill,  then  the  offense  would  not 
amount  to  an  assault  with  an  intent  to  murder. 

§  10.  Incapable  of  Forming  Intent  from  Drunkenness. — The 
court  instructs  the  jury,  that,  in  this  case,  in  order  to  warrant 
a  conviction  of  the  defendant,  the  jury  must  be  satisfied,  from 
the  evidence,  not  only  that  the  defendant  made  an  assault 
upon  the  said  A.  B.,  as  charged  in  the  indictment,  but  it  must 
also  appear,  from  the  evidence,  that,  at  the  time  he  made  the 
assault,  he  had  formed  in  his  own  mind  a  deliberate  intention 
to  take  the  life  of  the  said  A.  B.;  and,  if  the  jury  further 
believe,  from  the  evidence,  that  at  the  time  of  the  a'leged  ar- 
sault,  the  defendant  was  so  deeply  intoxicated  or  besotted  with 
drink  that  he  was  incapable  of  entertaining  or  forming  any 
positive  intent  to  kill  the  said  A.  B.,  then  the  jury  should  ac- 
quit the  defendant  of  the  crime  of  an  assault  with  intent  to 
commit  murder.     Mooney  vs.  The  State,  33  Ala.,  419;  State 


6Q4:  ASSAULTS. 

VS.  Garvey,  11  Minn.,  154;  Pigman  vs.  State^  1-4  Ohio,  555; 
1  Bishop  Crim.  Law,  §  492;  Pays  vs.  State^  5  Tex.  App.,  35; 
Parke  vs.  State,  5  Tex.  App.,  552. 

§  11.  Must  be  Proved  beyond  a  Reasonable  Doubt. — The  jury 
are  instructed,  that  if  they  believe,  from  the  evidence  in  the 
case,  that  there  is  a  reasonable  doubt  as  to  whether  the  pris- 
oner, at  the  time  of  the  shooting,  was  under  reasonable  appre- 
hension that  the  prosecuting  witness  intended  to  inilict  upon 
him  great  bodily  harm,  and  that  he  fired  the  shot  in  self- 
defense,  then  the  jury  must  acquit.  Lawlor  vs.  The  P€Oj>Le, 
74  111.,  230. 

If  the  jury  have  a  reasonable  doubt,  from  the  evidence  in 
the  caee,  whether  .the  gun  was  accidentally  or  intentionally  dis- 
charged, the  defendant  is  entitled  to  the  benefit  of  such  doubt, 
and  the  jury  should  find  the  defendant  not  guilty.  State  vs. 
Connor^  59  la.,  357. 

§  12.     Verdict  May  be  for  an  Assault  with  a  Deadly  Weapon. — 

The  court  further  instructs  the  jury,  that  under  the  indictment 
in  this  case,  they  may  find  the  defendant  guilty  of  an  assault 
with  intent  to  murder,  or  guilty  of  an  assault  with  a  deadly 
weapon,  with  intent  to  commit  a  bodily  injury,  when  no  con- 
siderable provocation  appears,  or  when  the  circumstances  of 
the  assault  show  an  abandoned  and  malignant  heart,  and  if,  after 
a  full  and  careful  consideration  of  all  the  evidence,  the  jury 
have  a  reasonable  doubt,  whether  the  defendant  is  guilty  of  an 
assault  with  an  intent  to  kill,  but  do  believe,  from  the  evidence, 
beyond  a  reasonable  doubt,  that  defendant  is  guilty  of  an  as- 
sault with  a  deadly  weapon,  and  with  intent  to  do  great  bodily 
injury  upon  the  person  of  the  said  A.  B.,  where  no  considera- 
ble provocation  appears,  or  under  circumstances  which  show 
an  abandoned  and  malignant  heart,  then  the  jury  should  so 
find  by  their  verdict. 

§  13.  May  Find  Defendant  Guilty  of  an  Assault  with  Intent  to 
Commit  Manslaughter. — If  you  find,  from  the  evidence,  that  the 
defendant,  at  the  time  and  place  charged  in  the  indictment, 
unlawfully  assaulted  said  Ryan  with  a  pistol,  and  shot  liim  in 
the  breast,  and  you  further  find  that  said  assault  was  made 


ASSAULTS.  CC5 

upon  reasonable  provocation,  in  tlie  heat  of  blood,  but  without 
malice,  and  withput  legal  excuse,  and  with  the  intent  to  kill, 
"Ihen  you  would  be  justified  in  finding  the  defendant  guilty  of 
tin  assault  with  intent  to  commit  manslaughter.  fState  vs. 
White,  45  la.,  325;  State  vs.  Connor,  59  la.,  357. 

ASSAULT  WITH  A  DEADLY  WEAPON  WITH  INTENT,  ETC. 

§  14.  Assault  with  a  Knife  Charged. — If  the  jury  believe, 
from  the  evidence  in  this  case,  that  the  defendant  made  an 
assault  upon  the  said  A.  B.,  with  any  sharp,  deadly  weapon, 
capable  of  producing  a  dangerous  cutting  wound,  in  manner 
and  form  as  charged  in  the  indictment,  then  the  jury  should 
find  the  defendant  guilty, 

§  15.     Proof  of  Instrument  of  the  Same  Kind.  Sufficient. — It  is 

immaterial,  in  this  case,  whether  the  alleged  injury  was  in- 
flicted with  a  knife,  or  not,  provided  the  jury  believe,  from 
the  evidence,  beyond  a  reasonable  doubt,  that  the  defendant 
made  an  assault-upon  the  said  A.  B.,  with  some  sharp,  cutting 
instrument,  capable  of  inflicting  a  dangerous  cutting  wound, 
and  of  doing  great  bodily  injury,  with  intent  to  inflict  upon 
the  person  of  the  said  A,  B.  a  bodily  injury,  without  any  con- 
siderable provocation  therefor,  or  under  circumstances  show- 
ing a  malignant  heait,  in  manner  and  form  as  charged  in  the 
indictment,  for  in  such  case  the  jury  should  find  the  defend- 
ant guilty.  Koscoe's  Crim.  Ev.,  705;  2  Whar.  on  Crim.  Law, 
§  1059. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  did  make  an  assault  upon  the  said 
A.  B.,  with  a  deadly  weapon,  in  manner  and  form  as  charged 
in  the  indictment,  and  that  there  was  no  considerable  provo- 
cation given  for  such  assault,  or  that  the  circumstances  of  the 
assault  showed  an  abandoned  and  malignant  heart  on  the  part 
of  the  defendant,  at  the  time,  then  the  jury  should  find  the 
defendant  guilty. 

§  16.  AVliat  Suffi.'ient  to  Prove. — That  all  that  is  necessary 
for  the  people  to  prove  in  this  case,  in  order  to  warrant  a 
conviction,  is  enough  to  satisfy  the  jury,  from  the  evidence, 


6GQ  ASSAULTS. 

beyond  a  reasonable  doubt,  that  the  defendant   -witliin 

years  before  the  finding  of  tbis  indictment,  within  the  county 
of,  etc.,  made  an  assault  upon  the  person  of  the  said  A.  B., 
with  a  revolver,  loaded  with  powder  and  ball;  that  the  same 
was  then  and  there  a  deadly  weapon,  and  that  such  assault  was 
made  with  intent  to  inflict,  upon  the  person  of  the  said  A.  B., 
a  bodily  injury,  when  no  considerable  provocation  appeared, 
or  when  the  circumstances  of  the  assault  showed  an  abandoned 
and  malignant  heart  on  the  part  of  the  defendant,  at  the  time. 

§  17.  What  Necessar,-  to  Prove. — The  court  instructs  the 
jury,  that  to  authorize  a  conviction  in  this  case  every  material 
allegation  in  the  indictment  must  be  proved,  beyond  any  rea- 
sonable doubt.  Among  the  material  allegations  in  this  indict- 
ment are:  1st.  An  assault  with  a  deadly  weapon.  2d.  That 
the  deadly  weapon  was  a  knife,  or  some  other  weapon  capable 
of  producing  a  wound  similar  to  that  of  a  knife.  3d.  That 
the  assault  was  made  upon  the  said  A.  B.  with  intent  to  inflict 
upon  him  a  bodily  injury.  4th.  That  there  was  no  considerable 
provocation  for  the  assault,  or  that  it  was  made  under  circum- 
stances showing  an  abandoned  or  malignant  heart. 

If  the  evidence  fails  to  establish  either  one  of  these  essential 
elements  of  the  offense  charged,  beyond  a  reasonable  doubt, 
then  it  will  be  the  duty  of  the  jury  to  acquit  the  defendant. 

In  this  case  it  is  incumbent  upon  the  prosecution  to  prove 
not  only  that  an  assault  was  made,  as  charged  in  the  indict- 
ment, but  also  that  the  assault  was  made  with  the  intent 
therein  charged. 

§  18.  No  Crime  without  Intent. — A  criminal  intent,  as  ex- 
plained in  these  instructions,  is  always  necessary  to  constitute 
a  crime,  and  when  such  criminal  intention  does  not  appear, 
from  all  the  facts  and  circumstances  proved  on  the  trial,  then 
the  act  complained  of  cannot  be  deemed  a  crime.  Misadven- 
ture or  accident,  when  the  circumstances  rebut  the  presump- 
tion of  criminal  intention  and  of  criminal  negligence,  as  ex- 
plained in  these  instructions,  are  not  deemed,  in  law,  criminal, 
however  injuriously  they  may  affect  persons  or  property. 
And,  in  this  case,  if  the  jury  believe,  from  the  evidence,  that 
while  the  defendant  and  the  prosecuting  witness  were  strug- 


ASSAULTS.  667 

glino;  together,  the  pistol  in  question  was  discharged,  accident- 
ally, then  the  jury  should  find  the  defendant  not  guilty. 

In  this  case,  if  the  prosecution  has  failed  to  establish,  be- 
yond a  reasonable  doubt,  that  the  defendant  intended  to  use, 
and  did  use,  the  pistol  in  question,  at  the  time  of  the  difficulty, 
for  the  purpose  of  inflicting  an  injury  upon  the  said  A.  B.,  in 
manner  and  form  as  charged  in  the  indictment,  or  with  an 
iiitent  to  do  him  a  bodily  injury,  the  jury  should  acquit  the 
defendant. 

§  19.  Presumption  of  Intent  may  be  Rebutted. — The  court  in- 
structs the  jury,  that  intent  is  the  gist  of  all  crimes,  and 
although  the  law  presumes  that  a  person  intends  the  natural 
results  of  his  own  acts,  yet  such  presumption  may  be  rebutted 
by  the  circumstances  of  the  case;  and  if  the  circumstances  and 
surroundings  of  a  case  show  that  there  was  no  malice,  and  that 
there  was  no  intention  to  do  what  was  actually  done  in  the  way  of 
inflicting  the  injury,  then  there  can  be  no  guilt.  And  if,  under 
the  evidence  in  this  case,  the  jury  can  reasonably  find  that  the 
shooting  was  not  intentional,  nor  the  result  of  criminal  negli- 
gence, as  explained  in  these  instructions,  but  was  the  result  of 
accident  or  misadventure,  then  the  jury  should  find  the  defend- 
ant not  guilty. 

§  20.  A  Deadly  Weapon  Defined. — The  court  instructs  the 
jury,  that  by  the  words  "a  deadly  weapon,"  the  law  means  any 
weapon  which  is  likely,  from  the  use  made  of  it  at  the  time, 
to  produce  death  or  do  great  bodily  harm.  2  Whar.  on  Crim. 
Law,  §  94:4;  1  Bish.  on  Crim.  Law,  §  335;  Reynolds  vs.  State^ 
4  Tex.  App.,  327. 


CHAPTEK  LIII. 
BURGLAEY. 


Sec.    1.  What  constitutes  burglary. 

2.  Prima  fade  case — Intent  presumnd. 

3.  Intent  must  be  proved. 

4.  What  constitutes  a  breaking. 

5.  What  constitutes  an  entry. 

6.  May  be  found  guilty  of  larceny 

§  1.  What  Constitutes  Burglary. — If  the  jury  believe,  from 
the  evidence,  beyond  a  reasonable  doubt,  that  the  defendants, 
or  either  of  them,  willfully,  maliciously,  feloniously  and  forci- 
bly, did  bi'eak  and  enter  the  house  of  the  said  A.  B.  (in  the 
night  time)",  at  and  within  this  county,  with  intent,  the  goods 
and  chattels  of  the  said  A.  B.,  then  and  there  in  the  sa^'d  dwell- 
ing-house being,  feloniously  and  burglariously  to  steal,  take  and 
carry  away,  then  the  jury  should  find  the  defendants,  or  such 
of  them  as  you  so  find  to  have  broken  and  entered  such  dwell- 
ing-house, guilty  of  the  crime  of  burglary. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
broke  and  entered  the  dwelling-house  of  the  said  A.  B.,  with 
a  felonious  intent,  in  manner  and  form  as  charged  in  the  in- 
dictment, either  by  entering  through  an  open  window  or  door, 
or  by  raising  a  window  or  opening  a  door,  such  entering  of  tlie 
house  constitutes  the  crime  of  burglary. 

§  2.  Prim  a  Facie  Case — Intent  Presumed. — If  the  jury  believe, 
from  the  evidence,  that  the  defendant  was  found,  on  the 
night  in  question,  in  the  house  of  the  said  A.  B.,  and  in  the 
bed-room  of  the  witness  E.  D.,  and  that  he  entered  the  house 
by  raising  a  window,  then  such  being  in  the  house,  unless 
explained  in  some  way  by  the  evidence,  consistently  Avith 
innocence,  will  justify  the  jury  in  presuming  that  such  entry 
was  made  with  a  felonious  intent,  in  manner  and  form  as 
charared  in  the  indictment.     Com.  vs.  'SAedd,  140  Mass.,  451. 


BUEGLAET.  669 

§  3.  Intent  Must  Appear. — The  jury  are  instructed,  that  in 
order  to  convict  the  defendant  of  the  crime  of  bnrgkry,  as 
charged  in  the  indictment,  the  prosecution  must  prove  to  the 
satisfaction  of  the  jury,  and  to  the  exckision  of  every  reason- 
able doubt,  not  only  that  the  defendant  willfull}^,  forcibly, 
maliciously  and  burglariously  broke  and  entered  the  house  of 
the  said  A.  B.,  but  also  that  he  broke  and  entei-ed  said  house 
with  the  intent  and  for  the  purpose  of  stealing  the  goods  and 
chattels  of  the  said  A.  B.,  then  and  there  being  in  said 
house;  and  if  the  prosecution  has  failed  to  prove  either  of 
these  essential  elements  of  the  crime,  as  charged  in  the  indict- 
ment, beyond  a  reasonable  doubt,  then  the  jury  should  acquit 
the  defendant. 

§  4.  What  Constitutes  a  Breaking. — The  court  instructs  the 
jury,  that  while  it  is  necessary,  in  order  to  constitute  the  crime 
of  burglary,  that  there  should  be  a  breaking  and  an  entry  of 
the  building  described  in  the  indictment,  with  the  intent 
therein  charged,  yet  to  constitute  a  breaking  into  the  building 
it  is  not  necessary  that  any  injury  should  be  done  to  the  build- 
ing, its  doors  or  windows;  such  breaking  may  be  actual  or 
constructive.  An  actual  breaking  may  be  by  lifting  a  latch 
and  oj^-ening  a  door,  by  turning  back  or  opening  the  lock  and 
opening  the  door,  removing  or  breaking  a  pane  of  glass,  or 
raising  a  window,  or  anything  by  which  an  obstruction  to 
entering  the  building  by  the  body,  or  any  part  of  it,  is  removed, 
is  a  breaking  within  the  meaning  of  the  law.  Timmons  vs. 
State,  34  Ohio  St.,  426;  Dennis  vs.  People,  27  Mich.,  151 ; 
State  vs.  Reid,  20  la.,  413;  Harris  vs.  People,  44  Mich.,  305. 

A  constructive  breaking  is  committed  when  admission  is 
obtained  by  threats,  or  by  fraud,  or  false  pretenses.  Johnson 
vs.  Com.,  85  Penn.  St.,  54. 

§  5.  What  Constitutes  an  Entry. — And  to  constitute  an  entiy 
within  the  meaning  of  the  law  it  is  not  necessary  that  the 
whole  body  should  be  introduced  into  the  building.  It  is 
sufficient  if  the  hand,  or  even  a  finger,  or  any  instrument  held 
in  the  hand  is  introduced  into  the  building  for  the  purpose 
and  with  the  intent  charged  in  the  indictment.  3  Greenlf. 
Evi.,  §  76-77;  Eoscoe's  Grim.  Evi.,  341-346;  1  Bishop  Grim. 
Law,  §  327. 


670  BUEGLAET. 

§  6.  May  be  Found  Guilty  of  Larceny. — The  jury  are  in- 
structed, that  under  an  indictment  for  bnrglarj  the  accused 
may  be  found  guilty  of  a  larceny,  and  in  this  case,  if  the  jury 
are  not  satisfied,  from  the  evidence,  that  the  defendant  com- 
mitted the  burglary,  as  charged  in  the  indictment,  still,  if  the 
jury  believe,  from  the  evidence,  beyond  a  reasonable  doubt, 
that  the  defendant  did  steal  the  goods  described  in  the  indict- 
ment, from  the  possession  of  the  said  A.  B.,  then  the  jury 
may,  under  this  indictment,  find  the  defendant  guilty  of  lar- 
ceny. 


CHAPTER  LIV. 

CKIMI^^AL    CONSPIKACIES. 


Sec.     1.  Conspiracy  defined. 

2.  Circumstantial  evidence  competent  proof. 

3.  Sufficient  proof  of  common  design. 

4.  Participants  after  the  conspiracy  is  formed. 

5.  Not  necessary  that  the  design  should  succeed. 

6.  Not  necessary  that  the  meeting  should  have  been  for  unlawful 

purposes. 

7.  A  common  design  the  essence  of  the  charge. 

8.  Conspiracy  to  commit  an  assault — Defendant's  instructions. 

9.  Conspiracy  to  cheat  and  defraud. 

§  1.  Conspiracy  Defined. — The  court  instructs  the  jury,  as 
a  matter  of  law,  that  a  conspiracy  is  a  combination  of  two  or 
more  persons  by  some  concert  of  action  to  accomplish  some 
criminal  or  unlawful  purpose,  or  some  purpose,  not  in  itself 
criminal  or  unlawful,  by  criminal  or  unlawful  means.  State 
vs.  Rowley.  12  Conn.,  101;  Smith  vs.  Peojple^  25  111.,  IT; 
Alderman  vs.  Peojple^  4  Mich .,  414. 

§  2.  Circumstantial  Evidence  Competent  Proof. — The  court 
instructs  the  jury,  as  a  matter  of  law,  that  the  evidence  in 
proof  of  a  conspiracy  will,  in  general,  be  circumstantial ;  and, 
although  the  common  design  is  the  essence  of  the  charge,  it  is 
not  necessary  to  prove  that  the  defendants  came  together  and 
actually  agreed,  in  terms,  to  have  that  design  and  to  pursue  it 
by  common  means.  Spies  et  al.  vs.  The  People,  12  N.  E. 
Rep.,  865;  3  Greenl.  on  Ev.,  §  83;  The  Mussel-Slough  Case, 
5  Fed.  Rep.,  C80;  2  Wharton's  Crim.  Law,  §  1398;  2  Bishop 
Cj-im.  Pro.,  §  227;  Tucl^er  vs.  Fi7ich,  66  Wis.,  17. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  if  the 
jury,  from  the  acts  of  the  parties,  as  proven,  and  from  all  the 
facts  and  circumstan^f  in  evidence,  believe,  beyond  a  reason- 
able doubt,  that  the  defendants  did  pursue  the  common  object 
of,  etc.,  as  clmT^ged  in  the  indictment,  and  by  the  same  means, 

(071) 


672  CEIMINAL    COKSPIRACIES. 

one  performing  one  part,  and  anotlier  another  part,  so  as  to 
aceomplisli  the  common  object,  then  the  jury  would  be  justi- 
fied in  the  conchision  that  the  defendants  were  engaged  in  a 
conspiracy  to  effect  that  object.  Kosc.  Crim.  Ev.,  416;  Smith 
vs.  The  Peox>le,  25  111.,  1. 

§  3.  Sufficient  Proof  of  Common  Design. — The  court  instructs 
the  jury,  as  a  matter  of  law,  that  while  it  is  necessary,  in  order 
to  establish  a  conspiracy,  to  prove  a  combination  of  two  or 
more  persons,  by  concerted  action  to  accomplish  tiie  crimina' 
or  unlawful  purpose  alleged  in  the  indictment,  yet  it  is  not 
necessary  to  prove  that  the  parties  ever  came  together  and 
entered  into  any  formal  agreement  or  arrangement  between 
themselves  to  effect  such  purpose;  the  combination,  or  com- 
mon design,  or  object,  may  be  regarded  as  proved,  if  the  jury 
believe,  from  the  evidence,  beyond  a  reasonable  doubt,  that 
the  parties  charged  were  actually  pursuing,  in  concert,  the 
unlawful  object  stated  in  the  indictment,  whether  acting  sepa- 
rately or  together,  by  common  or  difteient  means;  providing 
all  were  leading  to  the  same  unlawful  result.  U.  S.  vs.  Cole,  5 
M.  C.  Lane,  513. 

§  4.  Participants  after  the  Conspiracy  is  Formed. — The  court 
instructs  the  jur3^  as  a  matter  of  law,  that  all  who  take  part  in 
a  conspiracy  after  it  is  formed,  and  while  it  is  in  execution, 
and  all  who,  with  knowledge  of  the  facts,  concur  in  the  plans 
originally  formed  and  aid  in  executing  them,  are  fellow  con- 
spirators. Their  concurrence,  without  proof  of  an  agreement 
to  concur,  is  conclusive  against  them.  They  commit  the 
offense  when  they  become  partners  to  the  transaction,  or  further 
the  original  plan.     Peojple  vs.  Mather,  4  Wend.,  229. 

§  5.  Not  Necessary  that  the  Design  Should  Succeed.  —  The 
court  instructs  the  jury,  as  a  matter  of  law,  that  to  constitute 
the  crime  of  conspiracy  it  is  not  necessary  that  the  conspira- 
tors should  succeed  in  their  designs.  Nor  is  any  overt  act 
necessary  to  complete  the  crime;  the  offense  is  complete 
when  the  confederacy  to  pursue  the  common  purpose  is  made. 
State  vs.  Ridley,  31  Me.,  386;  Alderman  vs.  The  People,  4 
Mich.,  414;  State  v&.  Pulle,  12  Minn.,  164;  State  vs.  Straw, 
42  N.  H.,  393 ;  Johnson  vs.  State,  3  Tex.  Ai^p.,  590. 


CKIMINAL   CONSriKACIES.  673 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  to  con- 
stitute the  crime  of  conspiracy  it  is  not  necessary  that  the  con- 
spirators should  succeed  in  their  design;  it  is  enough  if  the 
connnou  design  was  formed,  in  manner  and  form  as  charged 
in  the  indictment,  and  that  any  act  was  done  iu  furtherance 
of  such  design  by  any  one  of  the  conspirators.  If  the  con- 
spiracy, charged  in  the  indictment,  has  been  proved  to  the 
satisfaction  of  the  jury,  beyond  a  reasonable  doubt,  then  the 
act  of  any  one  of  the  conspirators,  in  furtherance  of  the  com- 
mon design,  if  proved,  will  be  regarded  as  the  act  of  all.  State  vs- 
Norton^  23  N.  J.  L.,  33  j  Com.  vs.  Cwwninshield,  10  Pick.,  497. 

§  6.  Not  Necessary  that  the  Meeting  Should  Have  Been  for  an 
Unhiwtul  Purpose. — Though  the  jury  may  believe,  from  the  evi- 
dence, that  when  the  parties  came  together  upon  the  occasion 
in  question,  they  met  for  some  lawful  purpose,  yet,  if  the 
jury  furtlier  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  they  then  joined  in  attempting  to  accomplish  the 
unlawful  purpose  stated  in  the  indictment,  in  manner  and  form 
as  therein  alleged,  then  this  would  be  sufficient  evidence  of  a 
conspiracy  to  accomplish  such  purpose,  and  it  is  unnecessary 
to  prove  any  previous  plan  or  understanding  to  that  effect 
by  the  parties.  Lowery  vs.  State^  30  Tex.,  402;  3  Greenlf. 
Evi.,  §  93. 

§  7.  A  Common  Design,  the  Essence  of  the  Charge. — A  com- 
mon design,  or  purpose,  by  two  or  more  persons,  is  the  essence 
of  the  charge  of  conspiracy,  and  this  common  design  must  be 
proved  in  order  to  warrant  a  conviction,  either  by  direct  evi- 
dence or  by  the  proof  of  such  circumstances  as  naturally  tend 
to  prove  it,  and  sufficient,  in  themselves,  to  satisfy  the  jury  of 
the  existence  of  such  common  design  beyond  a  reasonable 
doubt. 

§   8.     Conspiracy  to  Commit  an  Assault — Defendant's  Instructions 

— The  jury  are  instructed,  that  iu  order  to  warrant  a  convic- 
tion in  this  case,  the  prosecution  must  prove,  beyond  a  reason- 
able doubt,  that  the  defendants,  or  some  two  of  them,  are  guilty 
of  the  crime  charged  in  the  indictment. 

To  authorize  a  conviction  in  this  case,  it  is  not  enough  for 
43 


674  CKIMIKAL    CONSPIEACIES. 

the  prosecution  to  prove  that  an  assault  was  committed;  it 
must  further  appear,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  at  least  two  of  the  defendants  had  formed  a  common 
design  to  assault  the  said  A.  B.,  or  else  took  part  in  such 
assault,  or  were  present,  aiding,  abetting,  advisingor  encourag- 
ing the  same,  otherwise  the  jury  should  find  all  the  defendants 
not  guilty. 

Although  tlie  jury  may  believe,  from  the  evidence,  that  the 
defendant  A.  struck  the  prosecuting  witness  at  the  time  in 
question,  still,  unless  the  jury  further  believe,  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that  one  of  the  other  defend- 
ants was  present,  aiding,  abetting,  advising  or  encouraging 
such  striking,  the  striking  alone  would  not  constitute  a  con- 
spiracy. 

Although  the  jury  may  believe,  from  the  evidence,  beyond 
a  reasonable  doubt,  that  one  of  the  defendants  threw  a  stone 
and  struck  the  prosecuting  witness,  still,  tliat  of  itself  would 
not  authorize  a  conviction  in  this  case.  To  authorize  a  convic- 
tion for  conspiracy,  it  should  further  appear,  from  the  evi- 
dence, to  the  exclusion  of  every  reasonable  doubt,  that  one  or 
more  of  the  other  defendants  took  part  in  the  difficulty,  or  in 
some  manner  aided,  abetted,  advised  or  encouraged  the  same, 
and  that  tliis  was  done  in  pursuance  of  a  common  design. 

Although  the  jury  may  believe,  from  the  evidence,  beyond 
a  reasonable  doubt,  that,  upon  the  occasion  in  question,  there 
was  an  assault  and  battery  committed  upon  the  said  A.  B.,  by 
two  or  more  of  the  defendants,  still,  this  alone  would  not  bo 
sufficient  to  warrant  a  conviction  for  the  crime  of  conspiracy; 
provided,  the  jurj-  believe,  from  the  evidence,  that  each  of  the 
parties  so  assaulting  acted  upon  his  own  motion  and  without 
any  reference  to  the  acts  or  intention  of  the  other  defendants, 
and  without  any  concert  of  action  to  accomplish  a  common 
design  or  purpose. 

§  9.  Conspiracy  to  Cheat  and  Defrand — Illinois. — The  court 
instructs  the  jury,  as  a  matter  of  law,  that  if  any  two  or  more 
persons  conspire  and  agree  together,  with  the  fraudulent  or 
malicious  intent  wrongfully  and  wickedly  to  injure  the  person, 
character,  business  or  property  of  another,  or  to  obtain  money 
or  other  property  by  false  pretenses,  or  to  do  any  illegal  act, 


CRIMINAL    CONSriRACIES.  675 

injurious  to  the  public  trade,  healtli,  morals,  police  or  admin- 
istration of  public  justice,  or  to  prevent  comjietition  in  the 
letting  of  any  contract  by  the  state  or  the  authorities  of  any 
county,  city,  town  or  village,  or  to  induce  any  person  not  to 
enter  into  such  competition,  or  to  commit  any  felony,  they 
shall  be  deemed  guilty  of  a  conspiracy;  and  every  such  of- 
fender, and  every  person  convicted  of  conspiracy,  at  common 
law  shall  be  imprisoned  in  the  penitentiary  not  exceeding  three 
years,  or  fined  not  exceeding  $1,000. 


CHAPTER  LV. 
HOMICIDE. 


Sec.     1.     Homicide  generally. 

MUKDEK    GENEKALLT. 

2.  Murder  defined. 

3.  Express  malice. 

4.  Implied  malice. 

5.  Presumption  from  killing. 

6.  Involuntary  killing — Act  naturally  tending. 

7.  Involuntary  killing — In  the  commission  of  a  crime. 

8.  Blow  with  a  deadly  weapon. 

9.  Same — No  considerable  provocation  appearing. 

10.  Words  not  sufficient  provocation. 

11.  The  cause  of  death  must  be  proved. 

12.  Wound  not  necessarily  fatal — Death  from  neglect. 

MDEDEE — FIEST  AND  SECOND  DEGKEES. 

13.  Murder  defined.        , 

14.  Of  the  first  degree. 

15.  Of  the  second  degree. 

16.  Elements  of  murder  in  the  first  degree. 

17.  Killing,  willfully,  etc. 

18.  No  length  of  deliberation,  etc.,  required. 

19.  Premeditated  design. 

20.  Same — Mutual  combat. 

21.  Intoxication  as  affecting  intent. 

22.  By  poisoning — Material  averments  to  be  proved. 

23.  Not  necessary  to  prove  the  particular  poison  or  quantity. 

24.  Death  hastened  by  poison,  etc. 

25.  Circumstantial  evidence  must  exclude,  etc. 

26.  Circumstances  pointing  as  strong  to  some  other  person. 

27.  Pointing  to  suicide. 

28.  Doubt  as  to  which  of  two  or  more  is  guilty. 

29.  Murder  not  reduced  to  manslaughter  by  provoking  words. 
80.  Verdict  may  be  for  lesser  crime. 

31.  Verdict  may  be  for  manslaughter. 

MANSLAUGHTEE. 

82.  Manslaughter  defined. 

33.  Voluntary. 

84.  Involuntary. 

(676) 


HOMICIDE.  677 

Sec.  35.  Malice  defined. 

36.  Malice  denotes  any  wicked  or  corrupt  motive. 

37.  Malice  presumed,  when. 

38.  Malice  aforethought. 

39.  Malice  implied. 

40.  Intent,  how  proved. 

41.  Presumed  to  intend  the  natural  consequences  of  his  act. 

42.  Criminal  responsibility. 

43.  When  not  responsible. 

44.  Burden  of  proof. 

45.  Reasonable  doubt  as  to  sanity. 

46.  Sanity  presumed — Insanity  must  be  proved. 

47.  Impulse  of  passion  no  defense. 

48.  Act  must  be  in  consequence,  etc. 

49.  Partial  insanity. 

50.  Insanity  the  efEcient  cause,  etc. 

51.  The  test  of  insanity. 

52.  Drunkenness  no  excuse  for  crime. 
63.  Justifiable  homicide — Self-defense. 

54.  Danger  need  not  be  real,  if  reasonably  apparent. 

55.  Force  may  be  resisted  by  force. 

56.  Assailant  retiring  from  the  fight. 

57.  Defense  of  habitation. 

58.  Attack  provoked  by  defendant. 

59.  Danger  must  be  reasonably  apparent. 

HOMICIDE. 

§  1.  Homicide  Generally. — The  Jury  are  instructed  that  the 
killing  of  a  human  being  may  be  either  justifiable,  excusable, 
or  felonious  and  criminal.  The  killing  is  justifiable  when 
done  in  the  necessary,  or  apparently  necessary,  defense  of 
one's  self  or  family  from  great  bodily  harm,  attempted  to  be 
committed  by  force.  It  is  excusable  when  one,  in  doing  a 
lawful  act,  by  mere  accident  unfortunately  kills  another. 
Such  killing,  when  it  is  neither  justifiable  nor  excusable,  is 
felonious  and  criminal,  and  it  may  be  either  murder  or  man- 
slaughter. 

MUEDEK  GENEEALLT. 

§  2,  Mnrder  Defined. — The  crime  of  mnrdei"  is  committed 
when  a  person  of  sound  memory  and  discretion  unlawful!}' 
kills  any  reasonable  creature  in  being,  under  the  peace  of  the 
state,  with  malice  aforethought,  either  expressed  or  implied 


678  HOMICIDE. 

Euss.  on  Cri.,  482;  Wliart.  Am.  Grim.  Law,  356;  3  Greenlf. 
Evi.,  §  130. 

§  3.  Express  Malice. — Express  malice  is  that  deliberate  in- 
tention unlawfully  to  take  away  the  life  of  a  fellow-creature, 
which  is  manifested  bj  external  circumstances  capable  of 
proof. 

§  4.  Implied  Malice. — Malice  is  implied  when  no  consider- 
able provocation  appears,  or  when  all  the  circumstances  of  the 
killing  show  ar.  abandoned  and  malignant  heart.  R.  S.  111., 
Ch.  38,  §  140. 

§  5.  Presumption  from  Killing. — The  jury  are  instructed,  that 
if  the  killing  of  the  person  mentioned  in  the  indictment  is 
satisfactorily  shown  by  the  evidence,  beyond  all  reasonable 
doubt,  to  liave  been  the  act  of  the  defendants,  or  either  of 
them,  then  the  law  pronounces  such  killing  murder,  unless  it 
appears,  from  the  evidence,  that  circumstances  existed  excusing 
or  justifying  the  act,  or  mitigating  it,  so  as  to  make  it  man- 
slaughter, as  explained  in  these  instructions.  Brown  vs.  State ^ 
4  Tex.  App.,  275. 

§  6.  Involuntary  Killing — Act  Naturally  Tending. — The  court 
further  instructs  the  jury,  that  when  an  unlawful,  unintentional 
killing  of  a  human  being  happens  in  the  commission  of  an 
unlawful  act,  which  in  its  consequences  naturally  tends  to 
destroy  the  life  of  a  human  being,  the  offense  will  be  murder 
and  not  manslaugliter.     2  Whar.  on  Grim.  Law,  967. 

§  7.     Involuntary  Killing — In  the  Commission  of  a  Crime. — The 

court  further  instructs  the  jury,  that  when  an  unlawful,  unin- 
tentional killing  of  a  human  being  happens,  or  is  committed 
in  the  prosecution  of  any  felonious  intent,  as  explained  in  these 
instructions,  the  killing  will  be  murder  and  not  manslaughter. 
If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  at  the  time  of  the  alleged  killing  the  defendants 
had  entered  the  house  of  the  deceased,  for  the  purpose  of 
stealing  and  carrying  away  any  article  of  personal  property 
therein,  and  that,  in  the  prosecution  of  that  purpose,  or  in  his 


HOMICIDE.  679 

efforts  to  escape  from  the  house  with  such  property,  the 
defendant  struck  the  deceased  and  tlierebj  caused  his  dcatli, 
then  such  killing  would  be  murder  and  not  manslaughter,  and 
it  would  be  wholly  immaterial  whether  such  killinsr  was  in- 
tentional or  not.  2  Bish.  on  Crim.  Law,  720;  Bissott  vs. 
State,  53   Ind..  408. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  said  J.  was  killed  by  the  defendant,  and  also, 
that  at  the  time  the  defendant  was  engaged  in  an  attempt  to 
rob  the  deceased,  then  the  defendant  is  guilty  of  murder  in  the 
lirst  degree,  although  he  may  have  had  no  intention  to  take 
the  life  of  the  said  J.     Monihaii  vs.  State^  7  Ind.,  126. 

If  the  jury  find,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  at  the  time  of  the  alleged  killing,  the  defendants, 
or  either  of  them,  made  an  attack  upon  the  deceased  for  the 
purpose  or  with  the  intent  of  feloniously  taking  from  him,  by 
force  and  against  his  will,  his  money,  watch  or  other  articles 
of  personal  property,  and  that  in  the  prosecution  of  that  pur- 
pose either  one  of  the  defendants  sti-uck  the  deceased,  and 
thereby  caused  his  deatli,  in  manner  and  form  as  charged  in 
the  indictment,  then  such  killing  would  be  murder,  not  only 
on  the  part  of  the  one  who  struck  the  blow,  but  also  on  the 
part  of  any  one  or  more  of  the  defendants  who  were  present, 
aiding  or  assisting  in  the  original  attempt  to  take  the  property 
of  the  deceased  by  force  or  against  his  will ;  if  the  jury  tind, 
from  the  evidence,  beyond  a  reasonable  doubt,  that  either  of 
the  other  defendants  was  so  present,  aiding  and  abetting ;  and 
in  such  case  it  would  be  wholly  immaterial  whether  the  blow 
was  struck  with  the  intention  of  taking  the  life  of  the  de- 
ceased, or  only  of  disabling  him. 

§  8.  Blow  with  Doatlly  Weapon. — If  the  jury  believe,  from 
the  evidence,  beyond  a  reasonable  doubt,  that  the  defendant 
killed  the  deceased  by  striking  him  on  the  head  with  a  stick, 
that  the  size  of  the  stick  was  such,  that  in  the  hands  of  a  man 
of  ordinary  strength,  striking  with  it  a  violent  blow  on  the  head, 
it  was  a  dangerous  weapon,  and  that  the  natural  consequence 
of  the  blow  struck  by  the  defendant  upon  the  head  of  the 
deceased  was  to  destroy  his  life,  and  that  his  death  was  caused 
by  such  blow,  then  the  jury  should  find  the  defendant  guilty 


680  HOMICIDE. 

of  murder;  provided,  that  they  further  believe,  from  the  evi- 
dence, beyond  a  reasonab'o  doubt,  that  the  blow  was  struck 
with  malice  aforethought,  ur  when  no  considerable  provocation 
appeared.     2  Whart.  on  Crim.  Law,  971. 

If  the  I'ury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  struck  the  deceased,  and  knocked 
him  down,  in  manner  and  form  as  charged  in  the  indictment, 
willfully  and  intentiimally,  and  without  legal  excuse  or  justifi- 
cation, as  the  same  is  explained  in  these  instructions,  and  that 
the  deceased  died  in  consequence  of  such  striking  and  knock- 
ing down,  in  manner  and  form  as  charged  in  the  indictment, 
then  the  jury  should  find  the  defendant  guilty. 

And  if  the  jury  further  believe,  from  the  evidence,  beyond 
a  reasonable  doubt,  that  the  defendant  struck  the  deceabcd  on 
the  head  with  such  a  stick,  that  the  violence  of  the  blow 
knocked  him  down  and  produced  insensibility,  speechlessness 
and  other  symptoms  of  a  fatal  character,  and   that,  suffering 

great  agony,  he  died  within  the  sj^ace  of or  thereabouts, 

after  the  blow  was  given,  then  these  are  ciicum stances  which 
the  jury  should  take  into  consideration,  together  with  all  the 
other  evidence  in  the  case,  in  determining  whether  or  not  the 
blow  was  what  occasioned  the  death  of  the  deceased.  Davis 
vs.  The  People,  19  111.,  74;  Keenan  vs.  Com.,  44  Penn.  St.,  55. 

§  9.  Blow  with  Deadly  Weapon — Xo  Considerable  Provocation 
etc. — If  the  jury  believe,  from  the  evidence,  beyond  a  reason- 
able doubt,  that  on  or  about,  etc,  the  defendant  and  deceased 
met  at,  etc.,  within  the  county,  etc.,  and  a  quarrel  ensued  be- 
tween them,  and  that  the  defendant  then  and  there  struck  tlie 
deceased  a  blow  on  the  head  with  a  dangerous  and  deadly 
weapon,  as  charged  in  the  indictment,  without  any  consider- 
able provocation,  or  without  such  provocation  as  was  appar- 
ently sufficient  to  excite  sudden  and  irresistible  passion,  and 
that,  on  the  same  day,  d, ceased  died  frcjm  the  effect  of  that 
blow,  then  tlie  jury  should  find  tlie  defendant  guilty  of  mur- 
der, unless  the  jury  further  find,  from  the  evidence,  that  the 
defendant  inflicted  the  fatal  blow  in  self-defense  to  save  his 
own  life,  or  to  prevent  great  bodily  harm  to  liimself,  and 
under  such  circumstances  that  a  reasonable  person  might  rea- 
sonably ai)prehend  danger  to  his  own  life,  or  great  bodily  harm 
to  himself. 


HoanciDE.  6S1 

§  10.  Words  no  Safficiont  Provocation. — The  court  instructs 
tlie  jurj,  that  no  provocation  by  words  only,  however  oppro- 
brious, will  mitigate  an  intenHonal  killing  so  as  to  reduce  the 
killing  to  manslaughter.  2  "Whart.  Crira.  Law,  970;  Ray  vs. 
State,  1^  Ga.,  223;  Bapp  vs.  State,  14  B.  Monroe,  494;  State 
vs.  Starr,  38  Mo.,  270;  Martin  vs.  People,  30  Wis.,  210. 

And  although  the  jury  may  believe,  from  the  evidence^ 
that  insulting  and  o])probrious  epithets  were  used  by  the  de- 
ceased to  the  defendant,  yet,  if  the  jury  further  believe,  from 
the  evidence,  beyond  a  reasonable  doubt,  that  the  defendant 
immediately  revenged  himself  by  the  use  of  a  dangerous  and 
deadly  weapon,  in  a  manner  likely  to  cause  the  death  of  the 
deceased,  and  did,  thereby,  cause  his  death,  then  the  defend- 
ant is  guilty  of  murder,  and  the  jury  should  so  find  by  their 
verdict. 

§  11.  Cause  of  the  Death  Must  be  Proved. — The  court  in- 
structs the  jury,  that  it  is  incumbent  upon  the  people  to  show 
by  ])roof,  beyond  a  reasonable  doubt,  that  the  deceased  came 
to  liis  death  by  reason  of  the  injury  inflicted  on  him  by  the 
pistol  ball  in  question.  The  people  must  show,  not  that  such 
injur}"-  was  probably  the  cause  of  the  death,  but  tliat  it  Avas 
the  efficient  and  immediate  cause  of  death;  and  the  evidence 
must  establish  this  fact  beyond  any  reasonable  doubt,  and  if 
this  has  not  been  done  the  jury  should  find  the  defendant  not 
guilty. 

§   12.     Wound    not  Necessarily  Fatal — Death  from   Neglect. — 

The  law  is,  that  if  one  unlawfully  inflicts  upon  another  a 
wound  which  is  not  in  its  nature  necessarily  mortal,  but 
which  might  be  cured  by  proper  care  and  surgical  treatment, 
and  the  person  injured  neglects  to  procure  such  care,  or 
refuses  to  receive  such  surgical  treatment,  and  he  die  of  the 
wound  owing  to  such  want  of  care  and  treatment,  this  will 
not  excuse  the  person  inflicting  the  wound ;  and  if,  in  such 
case,  the  jury  further  believe,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  the  injury  was  inflicted  by  accused  with 
malice  aforethought,  as  explained  in  these  instructions,  and 
that  the  deceased  died  from  such  wounds,  then  the  jury 
should  find  the  accused  guilty  of  murder.     3   Greenl.  Ev.. 


682  HOMICIDE. 

§139;  2  Bishop  Grim.  Law,  §  679-6S0 ;  State  vs.  Bautley,  44 
Conn.,  53T ;   Williams  vs.  The  State,  2  Tex.  App.,  271. 

Upon  the  question,  what  was  the  cause  of  the  death  of  the 
deceased,  the  coart  instructs  jou  that  in  order  to  convict 
the  defendant  under  this  indictment,  you  must  be  able,  from 
the  evidence,  to  trace  the  death  to  the  injury  alleged  to  have 
been  inflicted  by  the  defendant  and  that,  too,  beyond  any  rea- 
sonable doubt.     People  vs.  Cook,  39  Mich.,  236. 

If  you  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  gunshot  wound  was  in  itself  mortal  and  rea- 
sonably calculated  from  its  nature  and  extent  to  produce  death 
witliout  any  medical  or  surgical  treatment,  then  it  would  be 
no  defense  that  the  deceased,  under  better  or  different  medical 
treatment,  might  or  probably  would  have  recovered,  nor  will 
the  law  justify  a  verdict  of  acquittal,  merely  upon  the  ground, 
if  proved,  that  the  medicine  administered  or  the  surgical 
treatment  adopted  to  restore  or  relieve  the  deceased  in  point 
of  fact  co-operated  with  the  wound  in  producing  death.  It 
would  be  enough  if  you  believe,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  the  gunshot  wound  would  of  itself  have 
resulted  in  death  and  that  it  did  in  fact  contribute  directly  to 
the  death,  provided  also,  you  further  believe,  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that  the  said  wound  was  in- 
flicted with  malice  aforethought.  People  vs.  Cool',  39  Mich., 
236;  Bowles  vs.  State.  58  Ala.,  335. 

On  the  other  hand,  if  you  entertain  any  reasonable  doubt  as 
to  whether  the  gunshot  wound  was  mortal  in  itself,  or  rea- 
sonably calculated  from  its  nature  and  extent  to  produce  death, 
and  whether  death  did  ensue  solely  from  (morphine  poison.) 
and  to  which  the  wound  did  not  materially  contribute,  then 
you  should  acquit  the  defendant. 

If  one  person  inflicts  wounds  upon  another,  which  are 
dangerous  in  themselves,  though  not  necessarily  fatal,  but 
wliich  do  produce  death  through  a  chain  of  natural  causes  and 
effects,  uninfluenced  by  human  action,  then  the  wounds  are  to 
be  regarded  as  the  cause  of  the  death.  And  in  this  case  if  you 
believe,  from  the  evidence,  beyond  a  reasonable  doubt,  that  the 
defendant  did  inflict  wounds  ujwn  the  deceased,  in  manner  and 
form  as  charged  in  the  indictment,  and  that  these  wounds  were 
dangerous  in  themselves  though  not  necessarily  fatal,  and  that 


HOMICIDE.  683 

these  wounds  caused  congestion  of  the  brain,  and  that  the 
deceased  died  of  such  congestion  or  that  the  congestion  caused 
him  to  expose  himself  to  the  inclemency  of  the  weather,  and 
that  such  exposure  was  the  immediate  cause  of  his  death,  still, 
in  law,  it  will  be  held  that  the  defendant,  bv  inflictino-  the 
wounds,  caused  the  death  of  the  deceased.  Kelley  vs.  IState^ 
53  Ind.,  311. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant,  with  malice  aforethought,  shot  at 
and  hit  the  deceased  with  the  pistol  ball,  and  thereby  inflicted 
upon  him  a  wound  of  which  he  afterwards  died,  in  manner  and 
form  as  charged  in  the  indictment,  then  the  defendant  is  guilty 
of  murder,  although  the  jury  may  further  believe,  from  the 
evidence,  that  the  wound  was  not  necessarily  mortal,  and  that, 
with  proper  care  and  treatment,  the  deceased  might  have  re- 
covered. It  is  sufHcient,  in  such  cases,  to  warrant  a  conviction 
of  the  defendant,  if  the  jury  find,  from  the  evidence,  beyond 
a  reasonable  doubt,  that  the  deceased  died  from  the  effect  of 
the  wound,  and  not  from  his  own  misconduct  or  positive  ill- 
treatment  of  his  physician  or  others. 

MTEDEE FIEST  AND  SECOND  DEGREE. 

§  13.  Murder  Defined. — The  court  instructs  the  jury,  that, 
in  this  state,  whoever  kills  a  human  being,  with  malice  afore- 
thought, is  guilty  of  murder. 

If  a  person  forms  in  his  mind  a  purpose,  design  or  intention 
to  unlawfully  kill  a  human  being  with  malice  but  without 
premeditation,  and  he  does  so  kill  a  human  being,  then  the 
offense  comes  within  our  statute  defining  murder  in  the  sec- 
ond degree;  but  if  the  element  of  premeditation  is  also  pres- 
ent before  the  fatal  blow  is  struck,  then  it  is  muider  in  the 
first  degree.     Archie  vs.  State,  64  Ind.,  56. 

§  14.  Of  the  First  Degree. — The  jury  are  further  instructed, 
that  all  murder  which  is  perpetrated  by  means  of  poisoning, 
or  lying  in  wait,  or  any  other  kind  of  willful,  deliberate  and 
premeditated  killing  (or  which  is  committed  in  the  perpetra- 
tion or  attempt  to  perpetrate  any  arson,  rape,  robbery,  mayhem 
or  burglary)  is  murder  of  the  first  degree. 


684  HOMICIDE. 

§  15.  Of  the  Seconfl  Degree. — Tlie  jury  are  further  instruct- 
ed, that  whoever  commits  murder  otherwise  than  by  means 
of  poison  or  lyin^  in  wait,  or  other  kind  of  willful,  deliberate 
and  premeditated  killing  (or  which  is  committed,  etc.),  is 
guilty  of  murder  in  the  second  degree. 

The  jury  are  instructed,  as  a  matter  of  law,  that  when  the 
unlawful  killing  of  a  human  being  is  the  result  of  malice  sud- 
denly produced  at  the  time  a  fatal  blow  is  struck  and  the 
killing  is  without  premeditation  or  deliberation,  then  such 
killing  is  murder  in  the  second  degree.     McQueen  vs.  State, 

1  Lea  (Tenn.),  285. 

§  16.  Elements  of  Murder  in  the  First  Degree. — The  court 
instructs  the  jury,  that  under  our  statute,  to  constitute  murder 
in  the  first  degree,  the  jury  must  be  satisfied,  beyond  a  reason- 
able doubt,  from  the  evidence,  not  only  that  the  defendant, 
without  any  justifiable  cause  or  legal  excuse,  as  explained  in 
these  instructions,  killed  the  deceased  in  manner  and  form  as 
charged  in  the  indictment,  but  they  must  further  believe,  from 
the  evidence,  beyond  an}'  reasonaljle  doubt,  that  at  the  time 
the  defendant  struck  the  fatal  blow  he  had  formed  in  his 
mind  a  deliberate,  willful  and  premeditated  purpose  to  kill  the 
deceased,  and  that  he  struck  the  blow  with  the  intention  of 
effecting  that  purpose  (or  that  he  killed  the  deceased  while 
attempting  to  perpetrate  the  crime,  etc.)     Pj'inues  vs.  State, 

2  Tex.  App.,  369;  State  vs.  Melton,  67  Mo.,  594;   Cox   vs. 
State,  5  Tex.  App.,  493. 

Although  the  jury  may  believe,  from  the  evidence,  beyond 
a  I'easonable  doubt,  that  the  defendant,  without  justifiable  cause 
or  legal  excuse,  as  explained  in  these  instructions,  killed  tlie 
deceased,  still,  if  you  entertain  any  reasonable  doubt  whether 
thekilling  was  willful,  deliberate  and  premeditated,  or  whether 
the  fatal  blow  was  struck  with  deliberate  intent  on  the  i^art  of 
the  defendant  that  the  blow  should  take  the  life  of  the  de- 
ceased, (or  in  the  attempt  to  commit,  etc.),  then  the  jury 
should  only  find  the  defendant  guilty  of  murder  in  the  second 
degree. 

§  17.  Killing  Willfully,  etc. — That  under  our  statute,  the 
defendant  in  this  case  cannot  be  found  guilty  of  murder  in  the 


HOMICIDE.  GS5 

first  degree  unless  the  jury  are  satisfied,  from  the  evidence, 
beyond  a  reasonable  doubt,  not  only  that  the  defendant  is 
guilty  of  feloniously  killing  the  deceased,  but  it  must  further 
appear,  from  the  evidence,  beyond  a  reasonable  doubt,  that 
such  killing  was  done  willfully,  deliberately  and  with  premedi- 
tation; that  is,  that  it  was  done  intentionally,  sanely  and  with 
prior  deliberation.  And  unless  all  these  appear,  from  the 
evidence,  beyond  a  reasonable  doubt,  the  jury  cannot  lawfully 
find  the  defendant  guilty  of  murder  in  the  first  degree. 
"Wharton's  Law  of  Homicide,  368. 

§  18.  No  Length  of  Deliberation,  etc.,  Required. — The  jury  are 
instructed,  that  while  the  law  requires,  in  order  to  constitute 
murder  of  the  first  degree,  that  the  killing  shall  be  willful,  de- 
liberate and  premeditated,  still,  it  does  not  require  that  the 
willful  intent,  premeditation  or  deliberation,  shall  exist  for  any 
length  of  time  before  the  crime  is  committed;  it  is  sufficient 
if  there  was  a  design  and  determination  to  kill  distinctly  formed 
in  the  mind  at  any  moment  before  or  at  the  time  the  blow  is 
struck;  and  in  this  case,  if  the  jury  believe,  from  the  evidence, 
beyond  a  reasonable  doubt,  that  the  defendant  feloniously 
struck  and  killed  the  deceased,  as  charged  in  the  indictment, 
and  that  before  or  at  the  time  the  blow  was  struck  the  defend- 
ant had  formed  in  his  mind  a  willful,  deliberate|and  premedi- 
tated design  or  purpose  to  take  the  life  of  the  deceased,  and 
that  the  blow  was  struck  in  furtherance  of  that  design  or  pur- 
pose, and  without  any  justifiable  cause  or  legal  excuse  therefor, 
as  explained  in  these  instructions,  then  the  jury  sliould  find 
the  defendant  guilty  of  murder  of  the  first  degree.  2  Whar. 
on  Crim.  Law,  948;  Whar.  Law  of  Hom.,  382;  2  Bish.  on 
Crim.  Law,  §  750.  Contra:  Binns  vs.  State^  'o^  Ind..  428; 
Fahnestock  vs.  The  State,  23  Ind.,  231-2G3;  Ealbert  vs.  State, 
3  Tex.,  656. 

To  constitute  mnrder  in  the  first  degree  there  must  have 
been  an  unlawful  killing  done,  purposely  and  with  premedi- 
tated malice.  If  a  person  has  actually  formed  the  purpose 
maliciously  to  kill,  and  has  deliberated  and  premeditated  upon 
it  beforb  he  performs  the  act,  and  then  performs  it,  he  is 
guilty  of  murder  in  the  first  degree,  however  short  the  time 
may  have  been  between  the  purpose  and  its  execution.     It  is 


686  HOMICIDE. 

not  time  that  constitutes  the  distinctive  difference  between 
murder  in  the  first  and  in  the  second  degree ;  an  unlawful 
killing,  with  malice,  deliberati  -n  and  premeditation  constitutes 
the  crime  of  murder  in  the  first  degree.  It  matters  not  how 
short  the  time,  if  the  party  has  turned  it  over  in  his  mind, 
and  weighed  and  deliberated  upon  it.  FahnestocJc  vs.  State, 
23  Ind.,  231 ;  Miller  vs.  State,  54  Ala.,  155 ;  State  vs.  Weiners, 
66  Mo.,  13;  State  vs.  Ahmook,  12  Nov.,  369. 

§  19.  Premeditated  Design. — If  the  jury  believe,  from  the 
evidence,  beyond  a  reasonable  doubt,  that  the  defendant  shot 
the  deceased,  and  thereby  caused  his  death,  in  manner  and 
form  as  charged  in  the  indictment,  then  no  matter  what  the 
provocation,  and  no  matter  what  the  other  surrounding  cir- 
cumstances may  have  been,  unless  the  act  of  shooting  was  jus- 
tifiable, as  explained  in  these  instructions,  then  the  defendant 
is  guilty  (of  murder  in  the  first  degree) ;  provided,  you  fur- 
ther believe,  from  the  evidence,  beyond  a  reasonable  doubt, 
that  the  defendant  did  the  shooting  with  a  premeditated  design 
to  kill  the  deceased.     Roman  vs.  The  State,  41  Wis.,  312. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  sought  a  difliculty  with  the  deceased 
for  the  purpose  of  killing  him,  and  with  that  design  provoked 
a  fight  with  him,  and  in  the  fight  did  kill  him  in  pursuance  of 
his  intent  of  taking  the  life  of  the  deceased,  then  the  jury 
will  find  the  defendant  guilty  of  murder. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
sought  a  quarrel  with  the  deceased  and  first  struck  him  a  vio- 
lent blow  with  his  fist,  in  the  expectation  that  the  deceased 
would  resent  the  blow,  and  in  his  turn  attack  the  defendant, 
so  that  he  might  have  a  chance  to  shoot  or  stab  the  deceased, 
and  thereby  take  his  life,  and  further,  that  in  accordance  with 
such  expectation  the  said  deceased  did  thereupon  attack  the 
defendant  with  his  fists,  and  the  defendant  then  shot  the  de- 
ceased, as  charged  in  the  indictment,  such  killing  would  be 
murder  in  tlie  first  degree.     State  vs.  Christian,  'o^  Mo.,  138. 

The  jury  are  in.-tructed,  that  the  mere  fact  of  an  unlawful 
killing,  if  proved,  raises  no  presumption  that  the  killing  was 
murder  in  the  first  degree,  and  unless  the  circumstances  show, 
beyond  a  reasonable  doubt,  that  some  degree  of  deliberation 


HOMICIDE.  6S7 

took  place  before  the  killing  (or  in  the  a1  tempt,  etc.),  then 
the  conviction  can  only  be  for  murder  in  the  second  degree. 
Newton  vs.  tState^  6  Neb.,  136. 

§  20.  Premeditated  Design — 3Iutiial  Combat. — If  the  jury 
believe,  from  the  evidence,  that  at  the  time  of  the  alleged  kill- 
ing the  defendant  and  the  deceased  met  together,  and  mutu- 
ally agreed  to  engage  in  a  personal  combat,  and  did  engage 
in  snch  combat,  then,  if  the  jury  further  believe,  from  the 
evidence,  beyond  a  reasonable  doubt,  that  the  deceased  was 
unarmed,  and  that  the  defendant,  in  anticij)ation  of  having  a 
difficulty  with  deceased,  had  armed  himself  with  a  deadly 
weapon  without  the  knowledge  of  the  deceased,  with  the 
intention  of  using  the  same  some  time  during  the  contest,  and 
did  so  use  it,  and  thereby  killed  the  deceased,  then  such  kill- 
ing would  be  nmrder  in  the  first  degree.  State  vs.  Chrutlan^ 
66  Mo.,  13S. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  of 
the  alleged  killing,  the  defendant  and  the  deceased  met,  and 
upon  a  sudden  cause  of  quarrel  arising  between  them,  mutually 
agreed  to  engage  in  a  personal  combat,  and  did  so  engage  in 
such  combat,  and  if  the  jury  further  believe,  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that  during  such  quarrel  the 
defendant,  Mathout  the  knowledge  of  the  deceased,  made  use 
of  a  deadly  weapon,  in  such  a  manner  as  would  be  likely  to 
cause  the  death  of  the  deceased,  and  did  so  cause  it,  then  the 
defendant  was  guilty  of  murder;  and  if  the  jury  further 
believe,  from  the  evidence,  that  the  defendant  so  used  the 
said  deadly  weapon,  deliberately,  and  with  malice  afore- 
thought, and  with  intent  to  take  the  life  of  deceased,  or  to  do 
him  great  bodily  harm,  then  such  killing  would  be  murder  in 
the  first  degree.     State  vs.  Christian^  ^<o  Mo.,  138. 

§  21.  Intoxication  as  Affecting  Intent. — That  while  it  is  a 
general  rule  of  law  that  voluntary  drunkenness  is  no  excuse 
or  justification  for  a  crime  perpetrated  under  its  influence, 
still,  in  cases  of  this  kind,  drunkenness,  if  proved,  may  some- 
times be  considered  by  the  jury  for  the  purpose  of  determin- 
ing whether  the  accused,  at  the  time  of  the  alleged  offense,  was 
capable   of  forming   a   willful,  deliberate  and    premeditated. 


688  HOMICIDE 

design  to  take  life;  and  in  this  case,  although  the  jury  may 
believe,  from  the  evidence,  beyond  a  reasonable  doubt,  that 
the  defendant  killed  the  deceased,  in  manner  and  form  as 
charged  in  the  indictment,  still,  if  you  further  believe,  from 
•  the  evidence,  that  before  and  at  the  time  the  defendant  struck 
the  fatal  blow  he  was  so  deeply  intoxicated  by  spirituous 
liquors  as  to  be  incapable  of  forming,  in  his  mind,  a  design, 
deliberately  and  premeditatedly,  to  do  the  act,  then  such  kill- 
ing, under  such  a  state  of  intoxication,  would  only  be  murder 
of  the  second  degroe.  Greenlf.  Evi.,  §  148;  Wharton's  Law 
on  Homicide,  369;  Adcwis  vs.  State,  29  Ohio  St.,  412.  Contra: 
State  vs.  Cross,  27  Mo.,  332. 

§  22.  By  Poisoning — 3Iaterial  Averments  to  be  Proved. — The 
court  instructs  the  jury,  as  a  matter  of  law,  that  the  burden  of 
proof  is  on  the  prosecution  to  establish,  by  the  evidence,  every 
material  allegation  in  the  indictment,  beyond  a  reasonable 
doubt;  and  if  they  have  failed  to  do  so,  the  jury  must  acquit 
the  defendant. 

That  in  order  to  convict  the  defendant  of  the  crime  charged 
against  him,  the  jury  must  iiud,  from  the  evidence: 

First.     That  the  deceased  came  to  his  death  by  poison. 

Second.  That  it  was  administered  to  him  by  the  defendant 
in  his  lifetime. 

Third.  That  defendant  administered  the  poison  to  the 
deceased  willfully  and  knowingly;  and  with  the  intention  of 
depriving  him  of  life;  and, 

Fourth.  That  the  deceased  actually  died  from  the  effects 
of  the  poison  so  administered  to  him. 

And  if  the  jury  entertain  any  reasonable  doubt  upon  either 
of  these  material  propositions,  then  the  prosecution  has  failed 
to  establish  its  case,  and  the  juj-y  must  acquit  the  defendant. 

§  23.  Not  Necessary  to  Prove  the  Particular  Poison  or  Quan- 
tity.—  The  jury  are  instructed,  that  in  this  class  of  cases,  where 
the  indictment  charges  that  death  was  caused  by  pioisoning,  it 
is  not  necessary  to  prove  the  particular  substance  or  kind  of 
poison  used,  nor  is  it  necessary  to  give  direct  and  positive  proof 
what  is  the  quantity  which  would  destroy  life,  nor  is  it  neces- 
sary to  prove  that  such  a  quantity  was  found  in  the  body  of 


HOMICIDE.  GS9 

the  deceased.  It  is  sufficient,  if  the  jnry  are  satisfied,  by  the 
evidence,  beyond  a  reasonable  doubt,  that  the  death  was  caused 
by  poison  of  some  kind,  and  that  the  poison  was  administered 
by  the  accused,  with  the  intention  of  causing  death.  3  Greenl. 
Ev.,  §  135;  Whart.  Am.  Law  of  Horn.,  323. 

§  24.  Death  Hastened  by,  etc. — Although  the  Jury  may  be- 
lieve, from  the  evidence,  that  a  few  days  preceding  the  death 
of  the  deceased,  he  was  suffering  from  {any  disease),  still,  if 
the  jury  further  believe,  from  the  evidence,  beyond  a  reason- 
able doubt,  that  the  death  of  the  deceased  was  hastened  by 
the  subsequent  administration  of  arsenic  given  by  the  defend- 
ant, and  that  it  was  given  by  her  for  the  purpose  of  hastening 
his  death,  then  the  jury  should  find  the  defendant  guilty,  in 
manner  and  form  as  charged  in  the  indictment.  2  Greenl. 
Ev.,  §  139 ;  2  Bishop  on  Grim.  Law,  §  679-680 ;  Wharton  Am. 
Law,  Horn.,  241. 

§  25.  Circiim  itantial  Evidence  Must  Exclude,  etc. — The  jury 
are  instructed,  that  when  circumstances  alone  are  relied  upon 
by  the  people  for  a  conviction,  the  circumstances  nmst  be  such 
as  apply  exclusively  to  the  defendant,  and  such  as  are  recon- 
cilable with  no  other  reasonable  Iiypothesis  than  that  of  the 
defendant's  guilt;  and  they  must  satisfy  the  mind  of  the  jui'y, 
beyond  a  reasonable  doubt,  of  the  guilt  of  the  defendant. 

And  in  this  case,  if  the  jury  find,  from  the  evidence,  that 
all  the  criminating  circumstances  relied  upon  by  the  people 
for  a  conviction  will  as  well  apply  to  another  person  as  to  the 
defendant,  or  if  they  are  reconcilable  with  any  reasonable  hy- 
pothesis other  than  that  of  the  defendant's  guilt,  or  if  they 
do  not  satisfy  the  mind  of  the  jury,  beyond  a  reasonable  doubt, 
of  the  guilt  of  the  defendant,  then  he  cannot  be  legally  con- 
victed, and  you  must  acquit  him. 

§  26.  Circumstances  Pointing  as  Strongly  to  Some  Other  Person. 

— Should  the  jury  believe,  from  the  evidence,  that  the  deceased 
died  from  the  effect  of  poison,  adnn'nistered  to  him  by  some 
one,  still,  if  the  jury  further  find,  from  the  evidence,  that 
some  other  j^erson  had  the  same  opportunity  to  administer  the 
poison  that  the  defendant  had,  and  that  all  the  circumstances 
44 


690  HOMICIDE. 

point  as  clearly  to  some  other  person  as  having  administered 
the  poison,  as  to  the  defendant,  then  these  facts  are  sufficient 
to  raise  a  reasonable  doubt,  in  the  mind  of  the  jury,  as  to  the 
guilt  of  the  defendant,  and  the  jury  should  acquit  him. 

§  27.  Pointing  to  Suicide. — Although  the  jury  shonld  be- 
lieve, from  the  evidence,  beyond  a  reasonable  doubt,  that  the 
deceased  died  from  the  effect  of  poisoning,  still,  if  the  jury 
further  find,  from  the  evidence,  that  he  had  the  same  oppor- 
tunities for  taking  the  poison  himself,  without  the  aid  of  the 
defendant,  that  the  defendant  had  to  give  it  to  him,  and  if  it 
is  possible  in  any  reasonable  manner  to  explain  all  the  facts 
and  circumstances  proved  on  the  trial,  consistently  with  the 
hypothesis  that  he  did  take  the  poison  himself,  either  for  the 
purpose  of  committing  suicide,  or  as  a  medicine,  then  this  is 
sufficient  to  raise  a  reasonable  doubt  in  the  minds  of  the  jury 
as  to  the  guilt  of  the  defendant,  and  they  should  render  a  ver- 
dict of  not  guilty. 

§  28.  Doubt  as  to  AVhicli  of  Two  or  More  is  Guilty. — Although 
the  jury  may  believe,  from  the  evidence,  that  the  deceased 
was  killed  at  the  time  and  in  the  manner  mentioned  in  the 
indictment,  and  that  the  shot  that  caused  his  death  was  fired 
by  E.  F.,  or  by  the  defendant  C.  D.,  still,  if  the  jury  are  unable, 
from  the  evidence,  to  determine  by  which  of  said  persons  the 
shot  was  fired,  then  the  jury  should  consider  the  case  pre- 
cisely the  same  as  though  it  had  been  proved  that  some  person 
other  than  the  defendant  fired  the  fatal  shot. 

The  jury  are  instructed,  that  if  they  find,  from  a  considera- 
tion of  all  the  evidence,  that  it  points  as  clearly  to  one  A. 
B.  as  the  person  who  committed  the  crime  in  question,  as 
it  does  to  the  defendant,  or  if,  after  a  fair  and  full  considera- 
tion of  all  the  evidence,  the  jury  entertain  a  reasonable  doubt 
as  to  whether  the  said  A.  B.  or  the  defendant  is  the  guilty 
party,  then  the  jury  should  acquit  the  defendant. 

§  29.  Murder  Not  Reduced  to  31anslaugliter  by  Provoking 
Words. — The  court  further  instructs  the  jury,  that  where  a 
person  strikes  another  with  a  deadly  weapon,  in  a  manner  cal- 
culated or  likely  to  produce  death,  uo  words  of  reproach,  or 


HOMICIDE.  691 

abuse,  or  gestures,  however  irritating  or  provoking,  amount 
to  considerable  provocation  in  law,  so  as  to  reduce  the  crime 
of  killing  from  murder  to  manslaughter,  in  case  such  blow  re- 
sults in  death,  Peo^ple  vs.  Turleij,  50  Cal.,  469;  Bh^d  vs. 
State,  50  Ga.,  585. 

In  the  case  of  a  voluntary  killing  of  a  human  being,  without 
lawful  excuse  or  justification,  in  order  to  reduce  the  offense 
from  murder  to  manslaughter,  there  must  be  a  serious  and 
higlily  provoking  injury  inflicted  upon  the  person  killing,  suf- 
ficient to  excite  an  irresistible  passion  in  a  reasonable  person, 
or  an  attempt,  by  the  person  killed,  to  commit  a  serious  per- 
sonal injury  on  the  person  killing. 

§  30.  "Verdict  May  be  for  Lesser  Crime. — The  indictment  in 
this  case  charges  the  highest  degree  of  felonious  homicide 
known  to  the  law,  that  is,  murder  in  the  first  degree,  and  un- 
der this  indictment,  if  the  evidence  requires  it.  as  explained 
in  these  instructions,  the  jury  may  find  the  defendant  guilty 
of  either  murder  in  the  first  or  second  degree,  or  of  voluntary 
or  involuntary  manslaughter,  or  the  jury  may  find  the  defend- 
ant not  guilty.     Archey  vs.  State,  60  Ind.,  56. 

If  the  evidence,  under  the  instruction  of  the  court  as  to  the 
law  of  the  case,  require  it,  you  may  find  the  defendant  guilty 
of  murder  in  the  first  or  in  the  second  degree,  or  j^ou  may  find 
him  guilty  of  manslaughter,  or  you  may  find  him  not  guilty. 
If  all  the  allegations  in  the  (first  count  of  the)  indictment  have 
been  proved  to  your  satisfaction,  beyond  a  reasonable  doubt, 
you  should  find  the  defendant  guilty  of  murder  in  the  first 
degree.  If  all  the  allegations  of  the  indictment  have  been 
l>roved  beyond  a  reasonable  doubt,  except  the  allegation  of 
deliberate  or  premeditated  killing,  you  should  find  the  defend- 
ant guilty  of  mui-der  in  the  second  degree;  and  if  you  find, 
from  the  evidence,  bej^ond  a  reasonable  doubt,  that  the  de- 
fendant did  unlawfully  kill  the  deceased,  upon  a  sudden  quarrel, 
and  without  malice,  or  uniiit'^Mtionally,  while  the  defendant 
was  attempting  to  commit  any  unlawful  act  not  amounting  to 
felony,  then  the  offense  would  be  manslaughter;  or  if  the  jury 
have  any  reasonable  doubt,  arising  upon  all  the  evidence  in 
the  case,  as  to  the  defendant  being  guilty  of  one  of  these 
crimes,  they  should  simply  find  the  defendant  not  guilty. 
Binns  vs.  State,  QQ  Ind.,  428;  Adams  vs.  State,  29  Ohio  St.,  462. 


692  HOMICIDE. 

§  31.  Yertliot  may  be  for  Manslaiiffhter. — The  jury  are  in- 
Btructed,  that  under  an  ind'ctment  for  nnirder,  a  party  accused 
may  be  found  guilty  of  manslaughter.  And  in  this  case,  if 
after  a  careful  and  dispassionate  consideration  of  all  the  proof 
and  circumstances  in  evidence  before  you,  you  have  any  rea- 
sonable doubt  as  to  whether  the  defendant  is  guilty  of  murder, 
then  you  should  consider  whether  he  is  guilty  of  manslaughter; 
and  if  from  a  full  and  careful  consideration  of  all  the  evidence 
before  you,  you  believe,  beyond  a  reasonable  doubt,  that  the 
defendant  is  guilty  of  manslaughter,  you  should  so  find  b}' 
your  verdict  (and  in  that  event  it  will  be  your  duty  to  fix,  by 
your  verdict,  the  term  for  which  he  shall  be  confined  in  the 
penitentiary,  which  may  be  for  any  length  of  time,  not  less 
than  one  year,  and  it  may  be  for  the  term  of  his  natural  life). 
Schnier  vs.  The  People,  23  111.,  1. 

MANSLAUGHTER. 

§  32.  Manslaughter  Defined. — ISEanslaughtor  is  the  unlawful 
and  felonious  killing  of  another  without  any  malice,  either 
expressed  or  implied  (and  without  any  mixtu]-e  of  deliberation 
whatever).     It  may  be  voluntary  or  involuntary. 

§  33.  Voluntary. — In  cases  of  voluntar^Mnanslaughter,  there 
must  be  a  serious  and  highly  provoking  injury  inflicted  upon 
the  person  killing,  sufficient  to  excite  an  irresistible -passion  in 
a  reasonable  person,  or  an  attempt  by  the  person  killed  to 
commit  a  serious  personal  injury  on  the  person  killing.  The 
killing  must  be  the  result  of  the  sudden,  violent  imjDulse  of 
passion,  su]iposed  to  be  irresistible;  for  if  there  should  appear 
to  have  been  an  interval  between  the  assault  or  provocation 
given,  and  the  killing,  sufficient  for  the  voice  of  reason  and 
humanity  to  be  heard,  the  killing:  hall  be  attributed  to  deliber- 
ate revenge,  and  punished  as  murder.  Bruner  vs.  State,  58 
lud.,  159;  JSTye  vs.  The  People,  35  Mich.,  16. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  unlawfully  and  feloniously  sti-uck 
the  deceased  a  blow  which  caused  his  death,  then  to  reduce 
the  killing  from  murder  to  manslaughter,  the  jury  must  be- 
lieve, from  the  evidence,  that  the  ])rovocation  for  tlie  blow 


Ho:siiciDE.  693 

arose  at  the  time  the  blow  was  given,  and  that  the  passion 
was  not  the  result  of  a  former  i^rovocation;  that  such  passion 
was  either  anger,  rage,  sudden  resentment  or  terror,  which 
rendered  the  defendant  incapable  of  cool  reflection  upon  the 
character  and  results  of  his  acts,  and  that  the  act  was  directly 
caused  by  passion  arising  out  of  such  provocation.  Bayett  vs. 
IState^  2  Tex.  App.,  93;  ISeaU  vs.  State^  59  Tenn.,  459. 

§  34.  Involuntary. — Involuntary  manslaughter  consists  in 
the  killing  of  a  hnman  being  without  any  intent  to  do  so,  in 
the  commission  of  an  unlawful  act,  or  a  lawful  act  which 
probably  might  produce  such  a  consequence,  in  an  unlawful 
manner. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  killed  the  deceased  without  any 
legal  excuse  or  justification,  as  explained  in  these  instructions, 
still,  if  the  jury  further  believe,  from  the  evidence,  that  the 
instmment  tised  was  not  a  deadly  weapon,  and  that  when  the 
defendant  sti'uck  the  blow  it  was  not  his  intention  to  take  the 
life  of  the  deceased,  but  only  to  chastise  him,  then  you  should 
find  the  defendant  guilty  of  manslaughter.  2  Whar.,  §  94tlr- 
931. 

The  jury  are  instructed,  that  if  from  motives  of  hatred, 
revenge,  jealousy,  or  for  any  wrong  or  injury,  real  or  imagi- 
nary, a  sane  person  kills  another,  the  killing  will  be  referred  to 
malice,  and  must  be  regarded  as  murder.  If,  however,  the 
killing  is  the  result  of  a  sudden,  violent  impulse  of  passion, 
caused  by  a  serious  or  highly  provoking  injury  inflicted  upon 
the  person  killing,  and  which  is  sufficient,  in  the  minds  of  the 
jury,  to  excite  an  irresistible  passion  in  a  reasonable  person, 
and  the  interval  of  time  between  the  provocation  and  the  kill- 
ing is  not  sufficient  for  the  passions  to  cool  and  the  voice  of 
reason  and  humanity  to  be  heard,  then  the  killing  is  man- 
slaughter, and  not  murder.  Schnier  vs.  The  Peojple,  23  111., 
1;  Fisher  vs.  The  People,  23  111.,  283. 

The  jury  are  instructed,  that  if  they  believe,  from  the  evi- 
dence, that  defendant  voluntarily  got  into  a  difficulty,  or 
flght,  with  the  deceased,  but  did  not  intend  to  kill  him,  at  the 
time,  and  did  not  decline  further  fighting  before  the  fatal 
blow  was  struck,  and  then  drew  his  knife,  and  with  it  struck 


694  HOMICIDE. 

and  killed  the  deceased,  then  the  jury  should  find  the  defend- 
ant guilty  of  manslaughter;  although  the  jury  may  further 
helieve,  from  the  evidence,  that  the  cutting  and  killing  were 
done  in  order  to  prevent  the  deceased  from  getting  the 
advantage  in  the  fight,  or  doing  the  defendant  great  bodily 
injury. 

MALICE    AND    INTENT. 

§  35.  Malice  Defined. — The  court  instructs  the  jury,  that 
malice,  within  the  meaning  of  the  law,  includes  not  only  anger, 
hatred  and  revenge,  but  every  other  unlawful  and  unjustifiable 
motive.  State  vs.  Goodenow,  65  Me.,  30 ;  State  vs.  Weeners, 
QQ  Mo.,  13. 

§  36.  Malice  Denotes  any  Wicked  or  Corrupt  Motive. — That 
malice  is  not  confined  to  ill-will  towards  an  individual,  but  it 
is  intended  to  denote  an  action  flowing  from  any  wicked  and 
corrupt  motive.  A  thing  done  with  a  wicked  mind,  and  at- 
tended with  such  circumstances  as  plainly  indicate  a  heart  re- 
gardless of  social  duty,  and  fully  bent  on  mischief,  indicates 
malice  within  the  meaning  of  the  law ;  hence,  malice  is  implied 
from  any  deliberate  and  cool  act  against  another,  however 
sudden,  which  sliows  an  abandoned  and  malignant  heart. 
Archey  vs.  State,  64  Ind.,  56. 

§  37.  Malice  Presumed,  "Wlien. — The  court  instructs  the  jury, 
that  if,  without  such  provocation  as  is  apparently  sufiicient  to 
excite  irresistible  ])assion,  a  person  strikes  another  with  a  deadly 
weapon,  likely  to  occasion  death,  altlioiigh  he  had  no  previous 
malice  or  ill-will  against  the  party  struck,  yet  he  is  presumed 
to  have  had  such  malice  at  the  moment  of  striking,  and  if 
death  results  from  the  blow  it  will  be  murder. 

§  38.  Malice  Aforethought. — The  jury  are  instructed,  that 
the  deliberate  intention,  called  malice  aforethought,  need  be 
only  such  deliberation  and  thought  as  enables  a  jierson  to  ap- 
preciate and  understand,  at  the  time  the  act  was  committed, 
the  nature  of  his  act  and  its  probable  results. 

To  constitute  malice  aforethought,  no  particular  time  need 


HOMICIDE.  695 

intervene  between  the  formation  of  the  intention  and  the  act; 


it  is  enough  if  the  intent  to  commit  the  act,  with  a  full  appre- 
ciation of  the  result  likely  to  follow,  was  ])resent  at  the  time 
the  act  was  committed,  and  that  the  act  was  not  the  result  of 
some  sudden  heat  of  passion,  provoked  by  some  cause  calcu- 
lated to  override  the  judgment,  and  before  sufficient  time 
elapsed  for  reason  to  resume  its  sway.  Nye  vs.  Peo^le^  35 
Mich.,  16. 

§  39.  3Ialice  Implied. — The  jury  are  instructed,  that  malice 
is  always  implied  in  law  from  a  willful  and  criminal  act,  unless 
the  evidence  shows  that  the  defendant  was  acting  from  some 
innocent  or  proper  motive. 

§  40.  Intent,  How  Proved. — Upon  the  question  of  intent,  the 
court  instructs  the  jury,  that  the  law  presumes  a  man  to  intend 
the  reasonable  and  natural  consequences  of  any  act  intention- 
ally done;  and  this  presumption  of  law  will  always  prevail, 
unless,  from  a  consideration  of  all  the  evidence  bearing  upon 
the  point,  the  jury  entertain  a  reasonable  doubt  whether  such 
intention  did  exist. 

§  41.  Presumed  to  Intend  the  Natural  Consequences  of  the  Act. 
— That  the  law  presumes  that  a  person  intends  all  the  natural, 
probable  and  usual  consequences  of  his  act;  that  when  one 
person  assaults  another  violently  with  a  dangerous  weapon, 
likely  to  kill,  not  in  self-defense,  or  in  defense  of  habitation, 
property  or  person,  and  not  in  a  sudden  heat  of  passion  caused 
by  a  provocation  apparently  sufficient  to  make  the  passion  irre- 
sistible or  involuntar}',  and  the  life  of  the  party  thus  assaulted 
is  actually  destroyed  in  consequence  of  such  assault,  then  the 
legal  and  natural  presumption  is  that  death  or  great  bodily 
harm  was  intended,  and  in  such  case  the  law  implies  malice, 
and  such  killing  would  be  murder. 

The  accused  is  presumed  to  have  been  of  sound  mind,  at  the 
time  of  the  alleged  killing,  unless  the  evidence  leaves  a  reason- 
able doubt,  in  the  minds  of  the  jury,  u]K)n  that  point.  The 
law  presumes,  that  every  sane  person  contemplates  and  intends 
the  natural,  ordinary  and  usual  consequences  of  Jiis  own  volun- 
tary acts,  unless  the  contrary  appears,  from  the  evidence;  and 


696  HOillCIDE. 

if  a  man  is  shown  by  the  evidence,  beyond  a  reasonable  doubt, 
to  have  killed  another  by  any  act,  the  natural  and  ordinary 
consequences  of  which  would  be  to  produce  death,  then  it  will 
be  presumed  that  the  death  of  the  deceased  was  designed  by 
the  slayer,  unless  the  facts  and  circumstances  of  the  killing  or 
the  evidence  creates  a  reasonable  doubt  whether  the  killing: 
was  done  purposely.     Archey  vs.  Slaie,  64  Ind.,  56. 

INSANITY  AS  A  DEFENSE. 

§  42.  Crlniiii;»l  Responsibility. — Tlie  jury  are  instructed,  as  a 
matter  of  law,  that  if  a  person  lias  cap^acity  and  reason  suf- 
ficient to  enable  him  to  distinguish  between  right  and  wrong 
as  to  the  particular  act  in  question — that  is,  if  he  has  knowl- 
edge and  is  conscious  that  the  act  he  is  doing  is  wrong  and 
would  deserve  punishment— he  is,  in  the  eye  of  the  law,  of 
sound  mind  and  memory,  and  ca]3able  of  cummitting  crime. 
Brin.liey  vs.  The  State.  58  Ga.,  296. 

If  you  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  at  the  time  of  committing  the  alleged  act  the  de- 
fendant was  able  to  distinguish  riglit  from  wrong,  then  you 
cannot  acquit  him  on  the  ground  of  insanity. 

If  you  believe,  from  the  evidence,  be3^ond  a  reasonable 
doubt,  that  the  defendant  committed  the  crime  in  manner  and 
form  as  cliarged  in  the  indictment,  and  at  the  time  of  com- 
mitting such  act  was  able  to  distinguish  right  from  wrong, 
you  should  tind  him  guilty. 

If,  from  all  the  evidence  in  the  case,  you  believe,  be3'ond  a 
reasonable  doubt,  that  the  defendant  couniiitted  the  crime  of 
which  he  is  accused,  in  manner  and  form  as  charged  in  the 
indictment,  and  that  at  the  time  of  the  commission  of  such 
crime  the  defendant  knew  that  it  was  wrong  to  commit 
such  crime,  and  was  mentally  capable  of  choosing  either  to  do 
or  not  to  do  the  act  or  acts  constituting  such  crime,  and  of 
governing  his  conduct  in  accordance  with  such  choice,  then 
it  is  your  duty,  under  the  law,  to  find  him  guilty,  even  though 
you  should  believe,  from  the  evidence,  that  at  the  time  of  the 
commission  of  the  crime  he  was  not  entirely  and  perfectly 
sane,  or  that  ho  was  greatly  excited  or  enraged,  or  under  the 
influence  of  intoxicating  liquor.     JDimn  vs.  Peojple^  109  111.,  635. 


HOMICIDE.  G97 

In  tills  case  it  is  claimed  for  the  defendant,  that  at  the  time 
of  the  commission  of  the  act  his  mind  and  judgment  were 
affected  by  an  insane  delnsion,  that,  etc.,  and  to  such  an  extent 
as  to  render  him  of  unsound  mind,  and  not  responsible  for  his 
acts. 

In  reference  to  this  point  the  court  instructs  the  jury,  that 
although  they  may  believe,  from  the  evidence,  that  the  de- 
fendant, at  the  time  he  tired  the  pistol,  did  believe  and  suppose, 
that,  etc.,  this  would  not  exempt  him  from  liability  for  his 
acts,  if  the  jnry  believe,  from  the  evidence,  beyond  {^reason- 
able doubt,  that  he  intentionally  fired  the  shot  which  killed 
the  deceased,  and  that  he  knew  and  was  conscious  at  the  time, 
that  the  act  he  was  doing  was  wrong  and  punishable  by  the 
laws  of  the  land.     State  vs.  Mewheater,  4G  Iowa,  88. 

§  43.  When  not  Responsible. — If  the  jury  believe,  from  the 
evidence,  that  at  the  time  when  the  fatal  blow  is  alleged  to 
have  been  struck,  the  defendant  was  so  far  affected  in  his 
mind  and  memory  that  he  was  not  able  to  distinguish  right 
and  wrong,  and  had  not  knowledge  and  nnderstanding  of  the 
character  and  consequences  of  his  act  and  poAver  of  will  to 
abstain  from  it,  then  he  was  not  a  legally  responsible  being, 
and  the  jury  should  find  him  not  guilty.  State  vs.  Hewherter, 
46  Iowa,  88;  1  Whar.  Grim.  Law,  T  Ed. ;  Com.  vs.  Rogers,  7 
Mete,  500;  Freeman  vs.  People,  4  Denio,  10;  State  vs.  Hu- 
ting,  21  Mo.,  464;  Willis  vs.  People,  .5  Tiffany,  715;  A?ider- 
son  vs.  State,  45  Ga.,  11;  People  vs.  Coffman,  24  Cal.,  230. 

Note. — Three  distinct  theories  have  been  propounded  as  to  the  degree  of 
evidence  requisite  to  justify  a  conviction  on  the  issue  of  insanity.  The  first 
is,  that  insanity,  as  a  defense  of  confession  and  avoidance,  must  be  proved 
by  the  defendant  beyond  a  reasonable  doubt,  and,  unless  this  be  done,  the 
case  of  the  prosecution  being  otherwise  proved,  the  jury  are  to  convict. 
The  second  is,  that  the  jury  are  to  be  governed  by  the  preponderance  of  the 
evidence,  and  are  not  to  require  insanity  to  be  made  out  beyond  a  reasonable 
doubt.  A  third  view  is,  that  on  such  an  issue  the  prosecution  must  prove 
sanity  beyond  a  reasonable  doubt.  Under  one  or  the  other  of  the  last  two 
rules  the  following  instructions  will  be  proper. 

§  44.  Burden  of  Proof. — The  court  instructs  the  jury,  that 
m  all  criminal  cases,  before  conviction  can  be  had,  the  jury 
must  be  satisfied,  from   the  evidence,   beyond   a  reasonable 


698  HOMICIDE. 

doubt,  that   the  defendant   is  guilty,  in   manner  and   form  as 
charged  in  tlie  indictment. 

§  45.  Reasonable  Doubt  as  to  Sanity. — In  order  to  sustain  the 
defense  of  insanity  it  is  not  necessary  that  the  insanity  of  the 
accused  be  established,  by  a  preponderance  of  evidence;  if, 
upon  the  whole  evidence,  the  jury  entertain  a  reasonable  doubt 
as  to  the  sanity  of  the  accused  they  must  accpiit  him.  Hopps 
vs.  People,  31  111.,  385;  People  vs.  Wilson,  49  Cal.,  13;  State 
vs.  BruGe,  48  la.,  530;  See  State  vs.  ^^ingo,  m  Mo.,  181. 

While  it  is  true  the  law  presumes  every  man  to  be  sane  and 
responsible  for  his  acts  until  the  contrary  appears,  from  the 
evidence,  still,  if  there  is  evidence  in  the  case  tending  to  rebut 
this  presumption  sufficient  to  raise  a  reasonable  doubt  upon  the 
issue  of  insanity,  then  the  burden  of  proof  is  upon  the  people 
to  show,  by  the  evidence,  beyond  a  reasonable  doubt,  that  the 
defendant  was  sane,  as  explained  in  these  instructions,  at  the 
time  the  alleged  offense  was  committed.  Cone  vs.  McKie,  1 
Gray,  61;  Greenl.  Ev.,  13  Ed.,  §  81. 

§  46.  Sanity  Presumed — Insanity  Must  be  Proved. — The  court 
instructs  the  jury,  that  the  law  presumes  every  one  to  be  sane 
and  responsible  for  his  acts  until  the  contrary  be  shown  by  the 
evidence,  and  when  insanity  is  set  up  as  a  defense  to  an 
alleged  criminal  act,  the  burden  of  proof  is  upon  the  defend- 
ant to  show,  by  a  preponderance  of  evidence,  that  he  was 
affected  by  insanity,  or  b}^  some  insane  delusion,  as  explained 
in  these  instructions,  at  the  time  of  the  act,  to  such  an  extent 
that  he  did  not  know  what  he  was  doing,  or  that  he  did  not 
know  that  what  he  was  doing  was  wrong.  1  Whar.  Grim. 
Law,  Y  Ed.,  55;  State  vs.  Laurence^  57  Me.,  574;  Com.  vs. 
Eddy,  7  Gray,  583;  Eerris  vs.  T/te  People,  35  K  T.,  125 ; 
Loeffner  vs.  State,  10  Ohio  St.,  599;  State  vs.  Hundley,  46 
Mo.,  414;  State  vs.  Felte7\  32  Iowa,  50;  Dacey  vs.  The  Peo^ple, 
116  111.,  555. 

§  47.  Impulse  of  Passion  no  Defense. — The  jury  are  instructed 
that  one  who,  in  possession  of  a  sound  mind,  commits  a  ci'im- 
inal  act  under  the  imjMilse  of  passion,  or  revenge,  wliicli  may 
temporarily  dethrone  his  reason,  or  for  the  time  being  control 


HOMICIDE.  699 

his  win,  cannot  be  shielded  from  the  consequences  of  the  act 
bj  the  plea  of  insanity. 

§  48.  Act  Must  be  in  Consequence,  etc. — That  insanity  will 
only  excuse  the  commission  of  a  criminal  act  when  it  is  made 
to  appear,  affirmatively,  by  a  preponderance  of  the  evidence, 
that  the  person  committing  it  was  insane,  and  that  the  offense 
was  the  direct  consequence  of  his  insanity.  State  vs.  SticMey, 
41  Iowa,  232. 

§  49.  Partial  Insanity. — That  the  law  recognizes  partial  as 
well  as  general  insanity;  that  a  person  may  be  insane  upon  one 
or  more  subjects,  and  sane  as  to  others;  that  he  may  be  labor- 
ing under  a  mental  delusion  u])on  some  particular  matter,  or 
regarding  a  particular  person,  aud  generally  sane  upon  all  other 
subjects.  As  regards  the  guilt  or  innocence  of  a  party 
charged  with  the  commission  of  crime  it  makes  no  difference 
whether  the  act  charged  was  produced  by  general  insanity  or 
by  mental  delusion  regarding  some  particular  subject  or  person. 
If  the  person  charged  is,  at  the  time  of  the  alleged  offense, 
laboring  under  a  mental  delusion,  and  the  act  itself  is  the  prod, 
uct  of  such  delusion,  and  the  party,  at  the  time,  did  not  know 
or  realize  that  he  was  doing  wrong,  or  committing  a  crime, 
then  he  cannot  be  held  criminally  responsible  for  the  act. 

§  60.  Insanity  the  Efficient  Cause,  etc.- — The  court  instructs 
the  jury,  that  when  a  person  is  on  trial  on  an  indictment  for 
murder,  and  the  defense  of  insanity  is  set  up,  and  it  appear.-', 
from  the  evidence,  that  at  the  time  of  doing  the  act  charged 
the  prisoner  was  not  of  sound  mind,  but  was  affected  with 
insanity,  and  such  affection  was  the  efficient  cause  of  the  act, 
and  that  he  would  not  have  done  it,  but  for  the  affection, 
then  he  ought  to  be  acquitted. 

§  51.  Insanity — Test  of  Insanity. —  The  court  instructs  the 
jury,  that  the  law  presumes  every  man  to  be  sane  until  the 
contrary  is  shown,  and  when  insanity  is  set  up  as  a  defense  by 
a  person  accused  of  crime,  in  oi-der  that  the  defense  may 
avail,  the  jury  ought  to  believe,  from  the  evidence,  that,  at 
the  time  of  the  commission  of  the  crime,  the  mind  of  the 


700  HOMICIDE. 

accused  was  so  far  affected  with  insanity  as  to  render  him 
incapable  of  distinguishing  between  right  and  wrong  in  respect 
to  the  killing ;  or  if  he  was  conscious  of  the  act  he  was 
doing,  and  knew  its  consequences,  that  he  was,  in  consequence 
of  his  insanity,  wrought  up  to  a  frenzy  which  rendered  him 
unable  to  control  his  actions  or  direct  his  movements. 

To  constitute  a  defense,  the  unsoundness  of  mind,  or  in- 
sanity, must  be  of  such  a  degree  as  to  create  an  uncontrollable 
impulse  to  do  tlie  act  charged  by  overruling  the  reason  and 
judgment,  and  obliterating  the  sense  of  right  and  wrong  as  to 
the  particular  act  done,  and  depriving  the  accused  of  the 
power  of  choosing  between  them. 

§  52.  Druukenness  no  Excuse  for  Crime. — The  jury  are  in- 
structed, that  voluntary  intoxication  or  drunkenness  is  no  ex- 
cuse for  crime  committed  under  its  influence,  nur  is  any  state 
of  mind  resulting  from  drunkenness,  short  of  actual  insanity 
or  loss  of  reason,  any  excuse  for  a  criminal  act.  State  vs. 
Coleman^  27  La.  Ann.,  691;  Beasley  vs.  State,  50  Ala.,  149; 
State  vs.  Thomjyson,  12  Nov.,  140 ;  Fitzpatruh  vs.  People^ 
98  111.,  270  ;   Cobhath  vs.  State,  2  Tex.  App.,  391. 

In  relation  to  the  question  of  drunkenness  as  an  excuse  for 
crime,  the  court  instructs  the  jury,  that  if  a  person  is  sober 
enough  to  intend  to  shoot  at  another,  and  actually  does  shoot 
at  and  hit  him,  without  any  justification  therefor,  then  the  law 
]iresumes  that  such  person  is  sober  enough  to  form  the  specilic 
intention  to  kill  the  one  shot  at,  and,  in  such  case,  he  is  crimi- 
nally responsible  for  his  act.  Estes  vs.  State,  55  Ga.,  31 ;  1 
Wharton  Crim.  Law,  §  32. 

The  jury  are  further  instructed,  as  a  matter  of  law,  that  if 
a  person  voluntarily  becomes  intoxicated,  even  total  insanity, 
if  the  immediate  result  of  such  intoxication,  does  not  excuse  a 
criminal  act  committed  while  under  the  influence  of  such  intox- 
ication.    1  Wharton  on  Crim.  Law,  §  32. 

The  jury  are  further  instructed,  that  wdiile  intoxication  or 
drunkenness  is  no  excuse  for  a  criminal  act  committed  under 
its  influence,  still  settled  insanity  produced  by  intoxication 
excuses  an  act  committed  imder  its  influence  and  caused  by  it, 
in  the  same  way  as  insanity  produced  by  any  other  cause.  1 
Wharton  Crim.  Law,  §  33. 


HOMICIDE.  701 

If  the  jury  believe,  from  the  evidence,  heyond  a  reasonable 
donbt,  that  the  defendant  committed  the  act  char^^ed,  in 
manner  and  form  ascharged  in  the  indictment,  still,  if  the  jury 
further  believe,  from  the  evidence,  that  the  defendant,  at  the 
time,  was  in  such  a  state  of  mental  insanity  (not  produced  by 
the  immediate  effects  of  intoxicating  drink)  as  not  toliave  been 
conscious  of  what  he  was  doinj^,  or  that  the  act  itself  was 
wrong,  then  they  should  find  the  defendant  not  guilty.  U. 
8.  vs.  Drevj,  5  Mason  IT.  S.  Reports,  28;  Carter  vs.  State,  12 
Tex.,  500;  Maconnehey  vs.  State,  5  Ohio  St.,  77;  Bales  \s,. 
State,  3  W.  Ya.,  685;  Fisher  vs.  State,  64  Ind.,  435. 

The  jury  are  instructed,  that  under  our  law  voluntai-y  drunk- 
enness is  no  excuse  for  the  commission  of  a  crime.  Wliere, 
without  intoxication,  the  law  would  impute  a  criminal  intent, 
proof  of  drunkenness  will  not  avail  to  disprove  such  intent. 
Rafferty  vs.  The  People,  66  111.,  118. 

The  jury  are  instructed,  that  although  they  may  believe, 
from  the  evidence,  that  the  defendant  committed  the  criminal 
act,  in  manner  and  form  as  charged  in  the  indictment,  still,  if 
the  jury  further  believe,  from  the  evidence,  that  at  the  time 
he  so  committed  the  act  he  was  so  affected  by  what  is  known 
as  delirium  tremens  that  he  did  not  know  the  nature  of  the 
act,  nor  whether  it  was  wrong  or  not,  and  that  such  delirium 
was  induced  by  antecedent  and  long-continued  use  of  intoxi- 
cating drinks,  and  not  as  the  immediate  effect  of  intoxication, 
then  the  defendant  cannot  be  held  criminally  responsible  for 
such  act,  and  the  jury  shoukl  find  the  defendant  not  guilty. 
Bailey  vs.  State,  26  Ind.,  422. 

Although  drunkenness,  in  itself,  is  no  excuse  or  palliation 
for  crime  committed  while  under  its  influence,  yet  mental  un- 
soundness, superinduced  by  excessive  drunkenness,  and  con- 
tinuing after  the  intoxication  has  subsided,  may  be  an  excuse; 
provided  such  mental  derangement  be  sufficient  to  deprive  the 
accused  of  the  ability  to  distinguish  between  right  and  wrong. 
Beasley  vs.  The  State,  50  Ala.,  149. 

Although  it  is  the  law  in  this  state  that  a  criminal  offense 
consists  in  a  violation  of  a  public  law,  in  the  commission  of 
Mdiich  there  must  be  a  union  or  joint  operation  of  act  and  in- 
tention, or  criminal  negligence,  yet  where,  without  intoxica- 
tion, the  law  will  impute  to  the  act  a  criminal  intent,  as  in  the 


702  HOMICIDE. 

case  of  wanton  killing  without  provocation,  voluntary  drunk- 
enness is  not  available  to  disprove  such  intent.  Uj>sto)ie  vs. 
People,  109  111.,  177. 

If  you  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant,  when  voluntarily  intoxicated,  com- 
mi  tted  the  homicide  charged  in  the  indictment,  under  such 
circumstances  as  would  have  constituted  such  an  act  by  one 
not  intoxicated,  murder,  then  you  are  instructed  that  such  in- 
toxication would  not  reduce  the  crime  of  the  defendant  from 
murder  to  manslaughter,  nor  would  such  intoxication  be  any 
excuse  or  defense  to  the  act.     Ibid. 

The  court  further  instructs  you,  that  if  you  believe,  from 
the  evidence,  beyond  a  reasonable  doubt,  each  of  the  following 
propositions,  to  wit:  that  at  about  two  hours  before  the  com- 
mission of  the  alleged  homicide  defendant  was  sane,  and  had 
the  power  to  abstain  from  drinking  alcohol;  that  defendant 
then  knew  that  the  drinking  of  alcohol  by  him  would  have 
the  effect  to  render  him  insane  or  crazy;  that  defendant,  so 
knowing  the  effect  of  alcohol  upon  him,  and  being  sane,  and 
having  the  power  to  abstain  from  taking  alcohol,  did  then  and 
there  voluntaril}^  drink  alcohol;  that  the  alcohol  so  drank  by 
the  defendant  then  and  there  made  him  insane  or  crazy;  tliat 
while  insane  or  crazy  from  the  effects  of  such  alcohol  defend- 
ant committed  the  act  charged  in  the  indictment,  at  tlie  time 
and  place,  and  in  the  manner  and  form,  therein  charged — then 
you  should  find  defendant  guilty.  Upstone  vs.  The  People, 
109  111.,  177. 

Insanity  resulting  from  habitual  intoxication,  though  volun- 
tary, if  it  lias  been  long  continued  and  has  produced  disease, 
which  has  so  far  perverted  or  destroyed  the  mental  faculties 
as  to  render  the  person  so  affected  incapable,  by  reason  of  such 
disease,  of  acting  from  motives  or  of  distinguishing  between 
right  and  -A'rong  when  sober,  is  a  defent^e  to  a  prosecution  for 
a  crime  committed  while  in  that  condition.  Fisher  vs.  State, 
G4  Ind.,  435;  Gillooley  vs.  /State,  58  Ind.,  182. 

The  court  instructs  the  jury,  that  voluntary  intoxication 
furnishes  no  excuse  for  a  crime  committed  under  its  influence, 
even  if  the  intoxication  is  so  extreme  as  to  make  the  author  of 
the  crime  unconscious  of  what  he  is  doing,  or  to  create  a 
temporary  insanity. 


HOMICIDE.  703 

SELF-DEFENSE. 

r§  53,  Jiiptifi.ahle  Homicide — Self-Defenso. — The  jury  are  in- 
structed, tliat  justifiable  homicide  is  the  killing  of  a  human 
being  in  self-defense,  or  in  defense  of  habitation,  property  or 
person,  against  one  who  manifestly  intends  or  endeavors,  by 
violence  or  surprise,  to  commit  a  felony  on  either. 

A  bare  fear  of  any  of  these  offenses  is  not  sufficient  to  justify 
the  killing.  It  must  appear  that  the  circumstances  were  suffi- 
cient to  excite  the  fears  of  a  reasonable  man,  and  that  the  party 
killing  acted  under  the  influence  of  those  fears.  Thompson  vs. 
State,  55  Ga.,  47;  Wall  vs.  State,  51  Ind.,  453;  State  ys.  Stoc/i- 
ton,  61  Mo.,  382. 

The  jury  are  instructed,  as  a  matter  of  law,  that  if  a  person 
believes,  and  has  reasonable  cause  to  believe,  that  another  has 
sought  him  out  for  the  purpose  of  killing  him,  or  of  doing  him 
great  bodily  harm,  and  that  he  is  prepared  therefor  with  deadly 
weapons,  and  the  latter  makes  demonstrations  manifesting  an 
intention  to  commence  an  attack,  then  the  per,  on  so  threatened 
is  not  required  to  retreat,  but  he  has  the  right  to  stand  and  de- 
fend himself,  and  pursue  his  adversary  until  he  has  secured 
himself  from  danger;  and  if,  in  so  doing,  it  is  necessary,  or 
upon  reasonable  grounds  it  appears  to  be  necessary,  to  kill  his 
antagonist,  the  killing  is  excusable  upon  the  grounds  of  self- 
defense.  State  vs.  Alley,  68  Mo.,  124;  Forteiiberry  \s.  State, 
55  Miss.,  403;  J^rwin  vs.  State,  29  Ohio  St.,  186. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
procured  the  stick  with  which  the  blow  in  question  was  struck, 
only  for  the  purpose  of  self-defense,  and  did  not  intend  to  use 
it  for  any  other  purpose,  and  that  the  deceased  was  armed  with 
a  deadly  w^eapon,  and  was  turning  to  attack  the  defendant, 
and  that  the  defendant  was  aware  of  these  facts  and  knew  or 
had  good  ground  to  believe  and  did  believe  when  he  struck, 
etc.,  that  that  was  the  only  mode  by  which  he  could  avoid 
great  bodily  harm  to  himself,  and  that  he  used  no  more  force 
than  was  reasonably  necessary  for  his  own  defense,  then  liis 
act  was  not  unlawful,  and  the  jury  should  find  the  defendant 
not  guilty.     Jfarts  vs.  State,  26  Ohio  St.,  162. 

K  §   64.     Danger  Need  not  be  Real,  if  Reasonably  Apparent. — The 

court   instructs  the  jury,  that  tlie  law  is:  If  a  person  is  as- 


704:  HOMICIDE. 

sauUed  in  such  a  way  as  to  induce  in  liira  a  reasonaL'e  belief 
that  he  is  in  actual  dan»3r  of  losing  his  life,  or  of  sulfering 
great  bodily  harm,  he  will  be  justified  in  defea  lini^  himielf, 
although  the  danger  be  not  real,  but  only  apparent.  Such  a 
jierson  will  not  be  held  responsible,  criminally,  if  he  acts  in 
self-defense,  from  real  and  honest  convictions  as  to  the  clmrac- 
ter  of  the  danger,  induced  by  reasonable  evidence,  although  he 
may  be  mistaken  as  to  the  extent  of  the  actual  danger.  Steui- 
meyer  vs.  The  People^  95  111.,  3S3;  Roach  vs.  The  People,  11 
111.,  25;  State  vs.P''/'aii?ibu}'g,4:01i\..,5o5;  State  ys.  Pohan,  19 
Kas.,  28;   Creim  vs.  The  People,  120  III.,  317. 

A  person  need  not  be  in  actual  imminent  peril  of  his  life, 
or  of  great  bodily  harm,  before  he  may  slay  his  assailant;  it  is 
sufficient  if,  in  good  faith,  he  has  a  reasonable  belief,  from  the 
facts  as  they  appear  to  him  at  the  time,  that  he  is  in  such 
imminent  peril.  Murray  vs.  Com.,  79  Pa.  St.,  311;  Roach  vs. 
The  People,  71  111.,  25. 

That  the  rule  of  law  on  the  subject  of  self-defense  is  this: 
Where  a  man  in  the  lawful  pursuit  of  his  business  is  attacked, 
and  when,  from  the  nature  of  the  attack,  there  is  reasonable 
ground  to  believe  that  there  is  a  design  to  take  his  life  or  to  do 
him  great  bodily  harm,  and  the  party  attacked  does  so  believe, 
then  the  killing  of  the  assailant,  under  such  circumstances,  will 
be  excusable  or  justifiable  homicide,  although  it  should  after- 
wards appear  that  no  injury  was  intended  and  no  real  danger 
existed. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
was  assaulted  by  the  deceased  in  such  a  way  as  to  induce  in 
the  defendant  a  reasonable  and  well-grounded  belief  that  he 
was  actually  in  danger  of  losing  his  life  or  of  suffering  great 
bodily  harm,  then  he  was  justified  in  defending  himself, 
whether  the  danger  was  real  or  only  apparent.  Actual  or 
positive  danger  is  not  indispensable  to  justify  self-defense. 
The  law  considers  that  men,  when  threatened  with  danger, 
are  obliged  to  judge  from  appearances  and  determine  there- 
from as  to  the  actual  state  of  things  surrounding  them;  and,  in 
such  cases,  if  persons  act  from  honest  convictions,  induced 
by  reasonable  evidence,  they  will  not  be  held  responsible, 
criminally,  for  a  mistake  as  to  the  extent  of  the  actual  danger. 
Parker  vs.  State^  55  Miss.,  414;  Bode  vs.  State,  6  Tex.  App., 


HOMICIDE.  705 

421;  Kennedy  vs.  Com.^  14  Bush.  (Ky.),  340;  West  vs.  State^ 
o9Ind.,  113. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  the 
said  defendant  is  alleged  to  have  shot  the  deceased,  the  circum- 
stances surrounding  the  defendant  wei-e  such  as  in  sound  reason 
would  justify,  or  induce  in  his  mind,  an  honest  belief  that  he 
was  in  danger  of  receiving,  from  the  deceased,  some  great 
bodily  harm,  and  that  the  defendant,  in  doing  what  he  then 
did,  was  acting  from  the  instinct  of  self-preservation,  then  he  is 
not  guilty,  although  there  may,  in  fact,  have  been  no  real  or 
actual  danger. 

In  considering  whether  the  killing  was  justifiable  on  the 
ground  that  the  killing  was  in  self-defense,  the  jury  should 
consider  all  the  circumstances  attending  the  killing,  the  con- 
duet  of  the  parties  at  the  time  and  immediately  prior  thereto, 
and  the  degree  of  force  used  by  the  prisoner  in  making  what 
is  claimed  to  be  this  self-defense,  as  bearing  upon  the  question 
whether  the  blows,  if  given,  were  actually  given  in  self-de- 
fense, or  whether  they  were  given  in  carrying  out  an  unlaw- 
ful purpose;  and  if  the  jury  believe,  from  the  evidence,  that 
the  force  used  was  unreasonable,  in  amount  and  character,  and 
such  as  a  reasonable  mind  would  have  so  considered,  under 
the  circumstances,  it  is  proper  for  the  jury  to  consider  that 
fact  in  determining  whether  the  killing  was  in  self-defense. 
Close  vs.  Coo;per,  34  Ohio  St.,  98. 

§  55.  Force  may  be  Resisted  by  Force. — The  jury  are  in- 
structed, that  under  the  laws  of  this  state  a  person  has  a  right 
to  resist  an  unlawful  attack  by  force;  and  if  it  be  necessary  to 
preserve  the  life  of  the  person  assailed,  or  to  prevent  great 
bodily  injury  to  him,  the  repelling  force  may  go  to  the  extent 
of  taking  the  life  of  the  assailant. 

§  56.  Assailant  Retiring  from  the  Fight. — The  jury  are  in-  : 
str.,cted,  that  although  they  may  believe,  from  the  evidence, 
that  the  defendant  commenced  the  fight  in  question,  and  made 
the  first  attack  upon  the  deceased,  still,  if  the  jury  further 
believe,  from  the  evidence,  that  the  defendant  afterwards,  and 
before  the  fatal  blow  was  struck,  ceased  to  fight,  and  in  good 
faith  withdrew  from  the  conflict  by  retreating,  or  otherwise, 
45 


706  HOMICIDE. 

then  tlie  riglit  of  deceased  to  employ  force  against  the  defend- 
ant ceased;  and  if  the  deceased  did  not  then  desist  from 
attempting  to  use  violence  towards  the  defendant,  then  the 
defendant's  right  to  defend  himself  i-evived ;  and  if  he  then 
found  himself  in  apparent  danger  of  losing  his  life,  or  of  sus- 
taining great  bodily  injury  at  the  hands  of  the  deceased,  he 
had  the  same  right  to  defend  himself  that  he  would  have  had 
if  he  had  not  originally  commenced  the  conflict.  Terrell  vs. 
The  Cominonwealth^  13  Bush.  (Ky.),  246. 

To  justify  the  taking  of  life,  in  self-defense,  it  must  appear, 
from  the  evidence,  that  the  defendant  not  only  really,  and  in 
good  faith,  endeavored  to  decline  any  further  struggle,  and  to 
escape  from  his  assailant  before  the  fatal  blow  was  given,  but 
it  must  also  appear  that  the  circumstances  were  such  as  to  ex- 
cite the  fears  of  a  reasonable  person  that  the  deceased  intended 
to  take  his  life,  or  to  inflict  on  him  great  bodi'y  harm,  and  that 
the  defendant  really  acted  under  the  influence  of  these  fears 
and  not  in  a  spirit  of  revenge.  Parish  vs.  The  State,  14  J^eb.j 
60;  State  vs.  Sorenson,  32  Minn.,  118. 

§  57.  Defense  of  Habitation. — The  law  is  that  one  assailed 
with  a  deadly  weapon  in  his  own  house,  is  not  obliged  to  flee. 
If  such  a  person  is  violently  assaulted,  without  being  in  fault, 
he  may  repel  force  by  force,  and  if,  in  the  reasonable  exercise 
of  his  right  of  self-defense,  and  using  no  more  force  than  is  ap- 
parently necessary  in  defense  of  himself  and  habitation,  he 
kills  his  assailant,  the  killing  is  justifiable  homicide.  Bunyan 
vs.  State,  57  Ind.,  SO;  State  vs.  Ilar/nan,  78  K  C,  515;  State 
vs.  Mlddleham,  62  la.,  150. 

If  the  jury  believe,  from  the  evidence,  that  the  defendant, 
in  defense  of  himself,  inflicted  uix)n  the  deceased  the  wounds 
or  stabs  which  caused  his  death,  while  deceased  was  mani- 
festly intending  and  endeavoring,  in  a  violent  manner,  to  enter 
the  habitation  of  defendant,  for  the  purpose  of  assaulting  or 
offering  personal  violence  to  him.  or  to  any  member  of  his 
family  being  therein,  then  the  killing  would  be  justifiable,  and 
the  jury  should  find  the  defendant  not  guilty. 

If  the  jury  believe,  from  the  evidence,  that  just  prior  to  his 
death  the  deceased  attempted,  in  a  violent  manner,  to  enter 
the  dwelling  of  the  defendant,  for  the  purpose  of  assaulting 


HOMICIDE.  707 

liim,  or  offering  personal  violence  to  the  defendant,  being  in 
said  dwelling,  or  any  other  person  being  or  dwelling  therein, 
and  that  the  defendant,  in  reasonably  resisting  such  attempt 
of  the  deceased,  unintentionally  and  without  malice,  killed 
him,  then  the  killing  was  justifiable  or  excusable,  and  the  jury 
ought  to  acquit  the  defendant. 

The  jury,  in  considering  whether  the  killing  was  in  defense 
of  habitation,  should  consider  all  the  circumstances  attending 
the  killing,  and  the  conduct  of  the  parties  at  the  time,  and 
immediately  previous  thereto,  and  the  means  and  force  used 
as  bearing  upon  the  question  of  whether  the  killing  was  in 
defense  of  habitation,  in  good  faith,  or  whether  it  was  done 
maliciously  and  in  a  spirit  of  hatred  or  revenge.  Greschia  vs. 
The  People,  53  III,  295. 

§  58.  Attack  Provoked  by  tlie  Defendant. — The  court  instructs 
the  jury  that  a  partj^  charged  with  an  unlawful  or  deadly 
assault  upon  another,  cannot  avail  himself  of  the  claim  of  neces- 
sary self-defense  if  the  necessity  for  such  defense  was  brought 
on  by  his  own  deliberate,  wrongful  act.  Adams  vs.  The 
People,  47  111.,  376. 

§  59.  Danger  Must  Be  Reasonably  Apparent. — The  court  in- 
structs the  jury,  that  although  they  should  find,  from  the  evi- 
dence, that  the  said  A.  B.  and  the  defendants  got  into  a  quar- 
rel at  the  time  in  question,  and  that  the  said  A.  B.  followed 
the  defendant  up  in  a  threatening  manner,  still,  the  defendant 
would  have  no  right  to  assault  the  said  A.  B.  with  a  deadly 
weapon  in  a  manner  calculated  to  take  life,  or  do  great  bodily 
injury,  unless  the  circumstances  were  such  as  to  lead  a  reason- 
able person  to  believe  that  such  an  assault  Avas  necessary,  on 
the  part  of  the  said  defendant,  in  self-defense,  to  prevent  re- 
ceiving a  great  bodily  injury  himself.  Judge  vs.  State,  58 
Ala.,  406;  Jaclison  vs.  State,  6  Bax.  (Tenn.),  452;  Davis  vs. 
People,  88  111.,  350. 

The  court  instructs  the  jury,  that  if  a  man  kills  another 
through  mere  cowardice,  or  under  circumstances  which  are 
not,  in  the  opinion  of  the  jury,  sufficient  to  induce  a  reason- 
able and  well-grounded  belief  of  danger  to  life,  or  of  great 
bodily  harm,  in  the  mind  of  an   ordinarily  courageous  man, 


708  HOMICIDE. 

the  law  will  not  justify  the  killing  on  the  ground  of  self- 
defense. 

If  the  jury  believe,  from  the  evidence,  that  defendant  had 
no  reason  to  believe  that  deceased  intended  to  take  his  life,  or 
to  inflict  on  him  any  great  bodily  harm,  or  to  do  anything 
more  than  to  have  a  fair  fight,  and  that  defendant  struck  the 
fatal  blow  in  revenge,  or  in  a  reckless  spirit,  the  defendant  is 
not  entitled  to  claim  exemption  from  punishment  on  the 
ground  that  the  killing  was  in  self-defense. 

That  no  one  has  a  right  to  kill  another,  even  in  self-defense, 
unless  such  killing  is  apparently  necessary  for  such  defense. 
Before  a  person  can  justify  taking  the  life  of  a  human  being, 
on  the  ground  of  self-defense,  he  must,  when  attacked,  employ 
all  reasonable  means  within  his  power  consistent  with  his  safety 
to  avoid  the  danger  and  avert  the  necessity  for  the  killing. 


CHAPTER  LVI. 

IN"STRUCTIO>^S  IN  THE  ANARCHISTS'  CASE. 


The  instructions  given  by  the  court  in  the  trial  of  the  Anarchists  at 
Chicago,  and  approved  by  the  Supreme  Court  of  Illinois.  August  Spies  et 
al.  vs.  The  People,  122  111.  Sup.  Court  Repts.,  79;  12  Northeastern  Re- 
porter, 865;  10  Western  Reporter,  701. 

FOK  THE  PEOPLE. 

1.  Definition  of  murder. 

2.  Penalty. 

3.  Liberty  of  speech  limited — Accessory  defined. 

4.  Conspiracy  to  overthrow  the  law. 

5.  An  act  done  in  pursuance  of  a  common  design  may  be  shown  by  cir- 

cumstantial evidence. 

6.  Conspiracy  to  excite  people  to  sedition,  etc. 

7.  Conspiracy  may  be  shown  by  circumstantial  evidence. 

8.  Offense  is  committed  where  parties  further  the  original  plan. 

9.  Circumstantial  evidence  competent. 

10.  Meaning  of  circumstantial  evidence. 

11.  Defendants  as  witnesses — Rule  as  to  credibility. 

12.  Rule  as  to  the  presumption  of  innocence. 

13.  The  reasonable  doubt. 

14.  Jury  the  judges  of  the  law. 

15.  Not  at  liberty  to  disbelieve  as  jurors,  if  they  believe  as  men, 

16.  The  jury  may  find  all  guilty  or  all  not  guilty. 

17.  The  form  of  the  verdict. 

FOR  THE  DEFENDANTS. 

1.  The  jury  are  the  judges  of  the  law  and  the  facts. 

2.  They  have  the  right  to  disregard  the  instructions  of  the  court. 

3.  The  law  presumes  the  defendants  innocent. 

4.  Reasonable  doubt  raised  by  evidence  or  ingenuity  of  counsel. 

5.  Verdict  of  not  guilty  means  that  the  guilt  has  not  been  proven. 

6.  The  jury  are  not  to  convict  upon  mere  suspicion. 

7.  The  burden  of  proof  is  on  the  prosecution. 

8.  The  indictment  is  only  a  mere  accusation. 

9.  Presumption  of  innocence  not  a  mere  form. 

10.  Material  allegations  of  the  indictment  to  be  provedbeyond  a  reason- 

able doubt.  ' 

11.  The  burden  of  proof  on  the  people. 

12.  Reasonable  doubt  defined. 

13.  Rule  of  evidence  different  from  that  in  civil  cases. 

(709) 


710  INSTEUCTIONS    IN    THE   ANAKCHISTs'    CASE. 

14.  If  the  evidence  fails  to  establish  guilt,  jury  must  acquit. 

15.  Mere  probabilities  are  not  sufficient  to  convict. 

16.  Personal  opinions  not  to  be  the  basis  of  your  verdict. 

17.  The  jury  the  judges  of  the  credibility  of  witnesses. 

18.  What  is  sufficient  to  raise  a  reasonable  doubt. 

19.  What  will  justify  the  inference  of  guilt  from  circumstantial  evidence. 

20.  Accomplices  as  witnesses. 

21.  Inducements  held  out  to  accomplices  to  be  considered. 

22.  Persons  induced  to  become  witnesses  by  promises  of  immumfy. 

23.  The  jury  should  act  with  caution  upon  the  evidence  of  accomplices. 

24.  Omission  to  testify  creates  no  presumption  against  defendants. 

25.  The  jury  should  endeavor  to  reconcile  the  testimony  of  defendants' 

witnesses. 

26.  The  jury  have  no  right  to  disregard  the  testimony  of  the  defendants. 

27.  Rule  as  to  verbal  admissions  of  defendants. 

28.  Improper  for  the  jury  to  regard    statements  of   the    proseouting 

attorney. 

29.  The  rule  where  conviction  is  sought  upon  circumstantial  evidence. 

30.  Proof  that  the  defendants  contemplated  the  commission  of  the  crime 

not  enough  to  warrant  their  conviction. 

31.  Rule  where  the  proof  shows  conduct  of  no  less  turpitude  than  the 

crime  charged. 

32.  Allusions  of  the  prosecuting  attorney  to  dangerous  views  entertained 

by  the  defendants. 

33.  The  right  to  arm  for  defense  and  protection. 

34.  Right  to  repel  an  illegal  attack  by  force. 

35.  Burden  not  on  the  defendants  to  show  who  threw  the  bomb. 

36.  There  must  be  a  direct  connection  between  the  advice  and  the  con- 

summation of  the  crime. 

37.  The  person  who  threw  the   bomb  must  have  been  acting  under  the 

teaching  of  the  defendants,  etc. 
S8.     Not  liable  for  the  throwing  of  the  bomb  unless  it  was  in  furtherance 
of  the  common  design. 

INSTRUCTIONS  GIVEN  BY  THE  COURT  ON  ITS  OWN  MOTION. 

1.  Instructions  to  be  in  writing — Practice, 

2.  Jury  to  scrutinize  the  instructions. 

3.  General  rule  of  law  applying  to  the  case. 

INSTRUCTION  ON  MANSLAUGHTER  GIVEN  FOR  DEFENDANTS. 
1.     Manslaughter  defined— Jury  may  find  defendants  guilty  of  man- 
slaughter. 

INSTRUCTIONS    FOR    THE    PEOPLE. 

1.  Definition  of  Murder. — The  court  instructs  the  Jury,  in  the 
language  of  the  statute,  that  murder  is  the  unlawful  killing  of 
a  human  being,  in  the  peace  of  the  people,  with  malice  afore- 


INSTKUCTIONS    IN    TUB     ANAKCIllSTS'    CASE,  711 

thought,  either  ex]ircssed  or  implied.  An  unlawful  killing; 
may  be  perpetrated  by  poisoning,  striking,  starving,  drowning, 
stabbing,  shooting,  or  by  any  other  of  the  various  forms  or 
means  by  which  human  nature  may  be  overcome,  and  death 
thereby  occasioned.  Express  malice  is  that  deliberate  inten- 
tion, unlawfully  to  take  away  the  life  of  a  fellow  creature, 
which  is  manifested  by  external  circumstances,  capable  of 
proof.  Malice  shall  be  implied  when  no  considerable  provoca- 
tion appears,  or  where  all  the  circumstances  of  the  killing 
show  an  abandoned  and  malignant  heart. 

2.  Penalty. — The  court  instructs  the  jury,  that  whoever 
is  guilty  of  murder  shall  suffer  the  penalty  of  death,  or 
imprisonment  in  the  penitentiary  for  his  natural  life,  or  for  a 
term  not  less  than  fourteen  years.  If  the  accused,  or  any  of 
them,  are  found  guilty  by  the  jury,  the  jury  shall  lix  the 
punishment  by  their  verdict. 

3.  Liberty  of  Speech  Limited — Accessory  Befinefl. — The  court 

instructs  the  jury  that,  while  it  is  provided  by  the  Constitution 
of  the  State  of  Illinois  that  "ever}'-  person  may  freely  speak, 
write  and  publish  on  all  subjects,"  he  is,  by  the  Constitution, 
held  responsible  under  the  laws  for  the  abuse  of  the  liberty  so 
given.  Freedom  of  speech  is  limited  by  the  laws  of  the  land 
to  the  extent,  among  other  limitations,  that  no  man  is  allowed 
to  advise  the  committing  of  any  crime  against  the  person  or 
property  of  another.  And  so  the  statute  provided:  "An 
accessory  is  he  who  stands  by  and  aids,  abets  or  assists,  or  who, 
not  being  present  aiding,  abetting  or  assisting,  hath  advised, 
encouraged,  aided  or  abetted  the  perpetration  of  the  crime. 
He  who  thus  aids,  abets,  assists,  advises  or  encourages,  shall 
be  considered  as  principal  and  punished  accordingly." 

4.  Conspiracy  to  Overthrow  the  Law. — The  court  further 
instructs  the  jury,  as  a  matter  of  law,  that  if  they  believe  from 
the  evidence  in  this  case,  beyond  a  reasonable  doubt,  that  the 
defendants,  or  any  of  them,  conspired  and  agreed  together,  or 
with  others,  to  overthrow  the  law  by  force,  or  to  unlawfully 
resist  the  officers  of  the  law,  and  if  they  further  believe,  from 
the  evidence,  beyond  a  reasonable  doubt,  that  in  pursuance  of 


712  INSTKUCTIOKS    IK    THE    ANAKCHISTS'    CASE. 

such  conspiracy,  and  in  fui'therance  of  the  common  object,  a 
bomb  was  thrown  by  a  member  of  such  cons]«racy  at  tlie 
time,  and  that  Matthias  J.  Degan  was  killed,  then,  such  of  tlie 
defendants,  as  the  jnry  believe,  from  the  evidence,  beyond 
a  reasonable  doubt,  to  have  been  parties  to  such  conspiracy, 
are  guilty  of  murder,  whether  present  at  the  killing  or  not, 
and  whether  the  identity  of  the  person  throwing  the  bomb  be 
established  or  not. 

5.  An  Act  Done  in  Pursnance  of  a  Common  Design  Maybe  SIiomti 
by  Circumstantial  Evidence. — The  court  instructs  the  jur}'  that 
a  conspiracy  may  be  estaljlished  by  circumstantial  evidence, 
tlie  same  as  any  other  fact,  and  that  such  evidence  is  legal  and 
competent  for  that  purpose.  So,  as  to  whether  an  act  com- 
mitted was  done  by  a  member  of  a  conspiracy  may  be  estab- 
lished by  circumstantial  evidence,  whether  the  identity  of  the 
individual  who  committed  the  act  be  established  or  not,  and, 
also,  whether  an  act  done  was  in  pursuance  of  the  common 
design,  may  be  ascertained  by  the  same  class  of  evidence;  and 
if  the  jury  believe,  from  the  evidence  in  the  case,  beyond  a 
reasonable  doubt,  that  the  defendants,  or  any  of  them,  con- 
spired and  agreed  together,  or  with  others,  to  overthrow 
the  law  by  force,  or  destroy  the  legal  authorities  of  this  city, 
county  or  state,  by  force,  and  that  in  furtherance  of  this  com- 
mon design,  and  by  a  member  of  such  conspiracy,  Matthias  J. 
Degan  was  killed,  then  these  defendants,  if  any,  whom  the 
jury  believe,  from  the  evidence,  beyond  a  reasonable  doubt, 
were  parties  to  such  conspiracy,  are  guilty  of  the  murder  of 
Matthias  J.  Degan,  whether  the  identity  of  the  individual 
doins:  the  killino;  be  established  or  not,  or  whether  such  de- 
fendants  were  present  at  the  time  of  the  killing  or  not. 

6.  Conspiracy  to  Excite  People  to  Sedition,  etc. — If  these  de- 
fendants, or  any  two  or  more  of  them,  conspired  together, 
with  or  not  with  any  other  person  or  persons,  to  excite  the 
people,  or  classes  of  the  people  of  this  city  to  sedition,  tumult 
and  riot,  to  use  deadly  weapons  against  and  take  the  lives  of 
other  persons,  as  a  means  to  carry  their  designs  and  purposes 
into  effect,  and  in  pursuance  of  such  conspiracy,  and  in  further- 
ance of  its  objects,  any  of  the  persons  so  conspiring  publicly, 


mSTKUCTIONS    IN    THE    ANAECUISTs'    CASE.  T13 

by  print  or  spooeh,  advised  or  enconrnged  the  commission  of 
murder  without  designating  time,  place  or  occasion  at  which 
it  should  be  done,  and  in  pursuance  of  and  induced  by  such 
advice  or  encouragement  murder  was  committed,  then  all  of 
such  conspirators  are  guilty  of  such  murder,  whether  the  per- 
sons who  perpetrated  such  murder  can  bo  identified  or  not.  If 
such  murder  was  committed  in  pursnance  of  such  advice  or 
encouragement,  and  was  induced  thereby,  it  docs  not  matter 
what  change,  if  any,  in  the  order  or  condition  of  society,  or 
what,  if  any,  advantage  to  themselves  or  others,  the  conspir- 
ators proposed  as  a  result  of  their  conspiracy.  Nor  does  it 
matter  whether  such  advice  or  encouragement  had  been  fre- 
quent and  long  continued  or  not,  except  in  determining  whether 
the  perpetrator  was  or  was  not  acting  in  pnrsuance  of  such 
advice  and  encouragement,  or  was  or  was  not  induced  thereby 
to  commit  the  murder.  If  there  was  snch  conspiracy,  as  in 
this  instruction  is  recited,  and  such  advice  or  encouragement 
was  given,  and  murder  committed  in  pursuance  of  or  induced 
thereby,  then  all  of  snch  conspirators  are  guilty  of  murder. 
Nor  does  it  matter,  if  there  was  such  a  conspiracy,  how  im- 
practicable or  impossible  of  success  the  ends  and  aims  were, 
nor  how  foolish  or  ill-arranged  were  the  plans  for  its  execu- 
tion, except  as  bearing  on  the  question  whether  there  was  or 
was  not  such  conspiracy. 

7.     Conspiracy  may  be  Sllo^^^l  by  CnTumstantial  Evidence. — The 

court  instructs  tlie  jury,  that  a  conspiracy  may  be  established 
by  circumstantial  evidence  the  same  as  any  other  fact,  and  that 
such  evidence  is  legal  and  competent  for  that  purpose.  So, 
as  to  whether  an  act  committed  was  done  by  a  member  of  a 
conspiracy,  may  be  established  by  circumstantial  evidence, 
whether  the  identity  of  the  individual  who  committed  the 
act  be  established  or  not,  and  also  whether  an  act  done  was  in 
pursuance  of  the  common  design  may  be  ascertained  by  the 
same  class  of  evidence;  and  if  the  jury  believe,  from  the  evi- 
dence in  this  case,  beyond  a  reasonable  doubt,  that  the  defend- 
ants, or  any  of  them,  conspired  and  agreed  together,  or  with 
others,  to  overthrow  the  law  by  force  or  destroy  the  legal 
authorities  of  this  city,  county  or  state  by  force,  and  ihat  in 
furtherance  of  the  common  design,  and  by  a  member  of  such 


714  INSTKUCTIONS    IN    THE    ANAKCHISTS'    CASE. 

conspiracy,  Matthias  J.  Degan  was  killed,  then  these  defend- 
ants, if  any,  whom  the  jury  believe,  from  the  evidence,  beyond 
a  reasonable  doubt,  were  parties  to  such  conspiracy,  are  guilty 
of  the  murder  of  Matthias  J.  Degan,  whether  the  identity  of 
the  individual  doing  the  killing  be  established  or  not,  or 
whether  such  defendants  were  present  at  the  time  of  the  kill- 
ing or  not. 

8.  Offense  Committed  where  Parties  Further  the  Original  Plan. — 

The  jur}'-  are  instructed,  as  a  matter  of  law,  that  all  who  take 
part  in  the  conspiracy  after  it  is  formed,  and  while  it  is  in 
execution,  and  all  who,  with  knowledge  of  the  facts,  concur  in 
the  plan  originally  formed,  and  aid  in  executing  them,  are 
fellow  conspirators.  Their  concurrence,  without  proof  o-f  any 
agreement  to  concur,  is  conclusive  against  them.  They  commit 
the  offense  when  they  become  parties  to  the  transaction  or 
further  the  original  plan  with  knowledge   of  the  conspiracy. 

9.  Circnmstantial  Evidence  Competent. — The  court  instructs 
the  jury,  as  a  matter  of  law,  that  circumstantial  evidence  is 
just  as  legal  and  just  as  effective  as  any  other  evidence,  pro- 
vided the  circumstances  are  of  such  a  character  and  force  as  to 
satisfy  the  minds  of  the  jury  of  the  defendants'  guilt  beyond 
a  reasonable  doubt. 

10.  Meaning  of  Circumstantial  Evidence. — The  court  instructs 
the  jury,  that  what  is  meant  by  circumstantival  evidence  in 
criminal  cases,  is  tlie  proof  of  such  facts  and  circumstances 
connected  with  or  suri'ounding  the  commission  of  the  crime 
charged,  as  tend  to  show  the  guilt  or  innocence  of  the  party 
charged,  and  if  these  facts  and  circumstances  are  sufficient  to 
satisf}'  the  jury  of  the  guilt  of  the  defendants,  beyond  a  rea- 
sonable doubt,  then  such  evidence  is  sufficient  to  authorize  the 
jury  to  find  the  defendants  guilty. 

The  law  exacts  the  conviction  wherever  there  ig  legal  evi- 
dence to  show  the  defendants' guilt  beyond  a  reasonable  doubt, 
and  circumstantial  evidence  is  legal  evidence. 

§  11.  Defendants  as  Witnesses — Rule  as  to  Credibility. — The 
court  instructs  the  jury,  as  a  matter  of  law,  that  when  the  de- 


INSTRUCTIONS    IN    THE    ANARCHISTS'    CASE.  715 

fendants,  August  Spies,  Micliael  Schwab,  Albert  R.  Parsons 
and  Samuel  Fieldcn,  testified  as  witnesses  in  this  case,  each 
became  as  any  other  witness,  and  the  credibility  of  each  is  to 
be  tested  by  and  subjected  to  the  same  tests  as  are  legally  ap- 
plied to  any  other  witness;  and  in  determining  the  degree  of 
credibility  that  shall  be  accorded  to  the  testimony  of  any  one 
of  said  above  named  defendants,  the  jury  have  a  right  to  take 
into  consideration  the  fact  that  he  is  interested  intlie  result  of 
the  prosecution,  as  well  as  his  demeanor  and  conduct  upon  the 
witness  stand  and  during  the  trial,  and  the  jury  are  also  to  take 
into  consideration  the  fact,  if  such  is  the  fact,  that  lie  has  been 
contradicted  by  other  witnesses.  And  the  court  further  in- 
structs the  jury,  that  if,  after  considering  all  the  evidence  in 
this  case,  they  find  that  any  one  of  said  defendants,  August 
Spies,  Michael  Schwab,  Albert  R.  Parsons  and  Samuel  Fielden, 
has  willfully  and  corruptly  testified  falsely  to  any  fact  materifil 
to  the  issue  in  this  case,  they  have  the  right  to  entirely  disre- 
gard his  testimony,  excepting  so  far  as  his  testimony  is  cor- 
roborated by  other  credible  evidence. 

12.  The  Rule  as  to  the  Presumption  of  Innocence. — The  rule 
which  clothes  every  person  accused  of  crime  with  the  pre- 
sumption of  innocence,  and  imjjoses  upon  the  state  the  burden 
of  establishing  his  guilt  beyond  a  reasonable  doubt  is  not  in- 
tended to  aid  any  one  who  is  in  fact  guilty  of  crime  to  escape, 
but  is  a  humane  provision  of  law,  intended,  so  far  as  human 
agencies  can,  to  guard  against  the  danger  of  any  innocent  per- 
sons being  unjustly  punished. 

13.  The  Reasonable  Doubt. — The  court  instructs  the  jury, 
as  a  matter  of  law,  that,  in  considering  the  case,  the  jury  are 
not  to  go  beyond  the  evidence  to  hunt  up  doubts,  nor  must 
they  entertain  such  doubts  as  are  merely  chimerical  or  con- 
jectural. A  doubt,  to  justify  an  acquittal,  must  be  reasonable, 
and  it  must  arise  from  a  candid  and  impartial  investigation  of 
all  the  evidence  in  the  case,  and  unless  it  is  such  that  were  the 
same  kind  of  doubt  interposed  in  the  graver  transactions  of 
life,  it  would  cause  a  reasonable  and  prudent  man  to  hesitate 
and  pause,  it  is  insufficient  to  authorize  a  verdict  of  not  guilty; 
if,  after  considering  all  the  evidence,  you  can  say  you  have  an 


716  INSTEUCTIONS    IN    THE    AN-ARCIIISTS'    CASE. 

abidinf^  conviction  of  the  truth  of  the  charge,  you  are  satis- 
fied beyond  a  reasonable  doubt. 

14.  Jury  Judges  of  the  Law. — The  court  instructs  the  jury, 
that  they  are  the  judges  of  the  law  as  well  as  the  facts  in  this 
case,  and  if  they  can  say  upon  their  oaths,  that  they  know  the 
law  better  than  the  court  itself,  they  have  the  right  to  do  so. 
But  before  assuming  so  solemn  a  responsibility  they  should 
be  assured  that  they  are  not  acting  from  caprice  or  prejudice ; 
that  they  are  not  controlled  by  their  will  or  their  wishes;  but 
from  a  deep  and  confident  conviction  that  the  court  is  wrong, 
and  that  they  are  right.  Before  saying  this  u  pon  their  oaths,  it  is 
their  duty  to  reflect  whether  from  their  study  and  experience 
they  are  better  qualified  to  judge  of  the  law  than  the  court. 
If,  under  all  these  circumstances,  they  are  ]H-epared  to  say 
that  the  court  is  wrong  in  its  exposition  of  the  law,  the  stat- 
ute has  given  them  that  right. 

15.  Not  at  Liberty  to  Disbelieve  as  Jurors,  if  they  Believe  as 

Men. — The  court  further  instructs  the  jury,  as  a  matter  of  law, 
that  the  doubt  which  the  juror  is  allowed  to  retain  on  his  own 
mind,  and  under  the  influence  of  which  he  should  frame  a  ver- 
dict of  not  guilty,  must  always  be  a  reasonable  one.  A  doubt 
produced  by  undue  sensibility  in  the  mind  of  any  juror,  in 
view  of  the  consequences  of  his  verd'ct,  is  not  a  reasonable 
doubt,  and  a  juror  is  not  allowed  to  create  sources  or  materials 
of  doubt  by  resorting  to  trivial  and  fanciful  suppositions  and 
remote  conjectures  as  to  possible  state  of  facts,  differing  from 
that  established  by  the  evidence;  you  are  not  at  liberty  to  dis- 
believe as  jurors,  if  you  believe  as  men;  your  oath  imposes  on 
you  no  obligation  to  doubt  where  no  doubt  would  exist  if  no 
oath  had  been  administered. 

16.  The  Jury  May  find  all  Guilty  or  all  not  Gnilty. — In  this 
case  the  jury  may,  as  in  their  judgment  the  evidence  warrants, 
find  any  or  all  of  the  defendants  guilty  or  not,  or  all  of  them 
not  guilty;  and  if  in  their  judgment  the  evidence  warrants, 
they  may,  in  case  they  find  the  defendants  or  any  of  them 
guilty,  fix  the  same  penalty  for  all  of  the  defendants  found 
guilty,  or  different  penalties  for  the  different  defendants  found 


INSTRUCTIONS    IN    THE    ANARCUISTS'    CASE.  717 

guilty.  In  caso  they  find  the  defendants,  or  any  of  them, 
guilty  of  mui'der,  they  should  fix  the  penalty  either  at  death 
or  at  imprisonment  in  tlie  penitentiary  for  life,  or  at  imprison- 
ment in  the  penitentiary  for  a  term  of  any  number  of  years 
not  less  than  fourteen. 

17.  The  Form  of  the  Verdict. — If  all  the  defendants  are 
found  guilty,  the  form  of  your  verdict  will  be: 

We,  the  jury,  find  the  defendants  guilty  of  murder,  in  man- 
ner and  form  as  charged  in  the  indictment,  and  fix  the  pen- 
alty . 

If  all  are  found  not  guilty,  the  form  of  your  verdict  will  be: 

We  find  the  defendants  not  guilty. 

If  part  of  the  defendants  are  found  guilty  and  part  not 
■guilty,  the  form  of  your  verdict  will  be: 

We,  the  jury,  find  the  defendant  or  defendants  (naming 
liim  or  them)  not  guilty;  and  we  find  the  defendant  or  de- 
fendants (naming  him  or  them)  guilty  of  murder,  in  manner 
and  form  as  charged  in  the  indictment,  and  we  fix  the  pan- 
alty . 

INSTRUCTIONS  FOR  THE  DEFENDANTS. 

1.  The  Jury  are  the  Jmlj^es  of  the  Law  and  Fact. — The  jury 
are  instructed  for  the  defense  as  follows :  Thejury  in  a  crim- 
inal case  are,  by  the  statute  of  Illinois,  made  judges  of  the  law 
and  evidence;  and  under  these  statutes  it  is  the  duty  of  the 
jury,  after  hearing  the  arguments  of  the  counsel  and  the  in- 
structions of  the  court,  to  act  upon  the  law  and  facts,  accord- 
ing to  their  best  judgment  of  such  law  and  such  facts. 

2.  The  Jury  Have  a  Right  to  Disregard  the  Instructions  of  the 
Court. — The  jury  are  the  judges  of  the  law  and  the  facts,  and 
you  have  a  right  to  disregard  the  instructions  of  the  court, 
provided,  you,  upon  your  oath,  can  say  that  you  believe  you 
know  the  law  better  than  the  court. 

3.  The  Law  Presumes  the  Defendants  Innocent. — The  jury 
are  instructed  that  the  law  presumes  the  defendants  innocent 
in  this  case,  and  not  guilty  as  charged  in  the  indictment,  and 


718  INSTRUCTIONS    IN    THE    ANAECHISTS'    CASE. 

the  presiim])tion  should  continue  and  prevail  in  the  minds  of 
the  jury  until  they  are  satisfied  by  the  evidanco,  beyond  all 
reasonable  doubt,  of  the  guilt  of  the  defendants;  and  acting 
on  this  presumption,  the  jury  should  acquit  the  defendants, 
unless  constrained  to  find  them  guilty  by  the  evidence  convin- 
cing them  of  such  guilt,  beyond  all  reasonable  doubt. 

4.  Reasonable  Doubt  Raised  by  Evidence  or  Ingenuity  of  Counsel. 

— The  court  instructs  the  jury,  that  upon  the  trial  of  a  criminal 
cause,  if  a  reasonable  doubt  of  any  facts  necessary  to  convict 
the  accused  is  raised  in  the  minds  of  the  jury,  by  tlie  evidence 
itself,  or  by  the  ingenuity  of  counsel,  upon  any  hypothesis 
reasonably  consistent  with  the  evidence,  that  doubt  is  decisive 
in  favor  of  the  prisoner's  acquittal. 

5.  A  Verdict  of  Not  Guilty  Means  that  the  Gnilt  has  not  been 
Proven. — A  verdict  of  not  guilty  means  no  more  than  this: 
That  the  guilt  of  the  accused  has  not  been  demonstrated  in  the 
precise,  specific,  and  narrow  forms  prescribed  by  law.  The 
evidence,  to  convict  the  accused,  must  not  merely  be  beyond 
all  reasonable  doubt  consistent  with  the  hypothesis  of  his  or 
their  guilt,  but  it  must  also  be  beyond  all  reasonable  doubt 
inconsistent  with  any  hypothesis  of  innocence  that  can  be 
reasonably  drawn  therefrom. 

6.  The  Jury  are  not  to  Convict  upon  Mere  Suspicion. — The  court 

instructs  the  jury  that,  under  the  law,  no  jury  should  convict  a 
citizen  or  citizens  of  crime  upon  mere  suspicion,  however 
strong,  or  simply  because  there  is  a  ]u-eponderance  of  all  the 
evidence  in  the  case  against  him  or  them,  or  simply  because 
there  is  a  strong  reason  to  susj^ect  that  he  or  they  is  or  are 
guilty;  but  before  the  jury  can  lawfully  convict,  they  must 
be  convinced  of  the  defendants'  guilt  beyond  ail  reasonable 
doubt. 

7.  Burden  of  Proof  is  on  the  Prosecution. — The  court  further 
instructs  the  jury  that  in  this  case  the  law  does  not  require  of 
the  defendants  that  they  prove  themselves  innocent,  but  the 
law  im))Oses  ujjon  the  prosecution  to  prove  that  the  defendants 
are  guilty,  in  manner  and  form  as  charged  in  the  indictment. 


INSTKUCTIONS    IN    THE    ANAKCIIISTS'    CASE.  719 

to  the  satisfaction  of  the  jniy,  beyond  all  reasonable  doubt: 
and  unless  tliej  have  done  so  the  jury  should  liud  them  not 
guilty, 

8.  The  Indictment  only  a  Mere  Acensation. — The  jury  are 
furtlier  instructed,  that  the  indictment  in  this  case  is  of  itself 
a  mere  accusation  or  charge  against  the  defendants,  and  is  not, 
of  itself,  any  evidence  of  the  defendants'  guilt;  and  no  juror 
in  this  case  should  permit  himself  to  be,  to  any  extent,  influ- 
enced against  the  defendants,  because  or  on  account  of  the 
indictment  in  this  case. 

9.  Presumption  of  Innocence  not  a  Mere  Form. — The  jury  are 
instructed  furtlier,  that  the  presumption  of  innocence  is  not  a 
mere  form,  to  be.  disregarded  by  the  jury  at  pleasure,  but  it  is 
an  essential,  substantial  part  of  the  law  of  the  land,  and  bind- 
ing on  the  jury  in  this  case  ;  and  it  is  the  duty  of  the  jury  to 
give  the  defendants  in  this  case  the  full  benefit  of  this  pre- 
sumption, and  to  acquit  tlie  defendants,  unless  they  feel  com- 
pelled to  find  them  guilty  as  charged,  by  the  law  of  the  land 
and  the  evidence  in  the  case,  convincing:  them  of  their  ffuilt 
as  charged,  beyond  all  reasonable  doubt. 

10.  Every  Material  Allegation  of  the  Indictment  to  be  Proved 
Beyond  a  Reasonable  Doubt. — The  jury  are  instructed,  by  the 
court,  that  in  this  case  the  burden  of  proof  rests  upon  tlie 
prosecution  to  make  out  and  prove  to  the  satisfaction  of  the 
jury,  beyond  all  reasonable  doubt,  every  material  allegation  in 
the  indictment,  and  unless  that  has  been  done  the  jury  should 
find  the  defendants  not  guilty. 

11.  Burden  of  Proof  on  the  Peoi>le,  etc. —  Tlie  court  fur- 
ther instructs  the  jury,  that  in  this  case,  to  justify  a  conviction 
of  any  one  of  the  defendants,  the  burden  is  on  the  prosecution 
to  prove,  by  creditable  evidence,  to  the  satisfaction  of  the 
jury,  beyond  all  reasonable  doubt,  that  such  defendant  is  guilty, 
as  charged  in  the  indictment,  of  the  murder  of  Matthias  J. 
Degan;  and  if  the  evidence  fails  thus  to  satisfy  the  jury  of 
the  guilt  of  any  one  or  more,  or  all  of  the  defendants,  it  is 
the  duty  of  the  jury  to  acquit  each  and  every  of  the  defend- 


720  IJSrSTKUCTIOKS    IN    THE    AiS'ARCHISTs'    CASE. 

ants,  as  to  whom  tlieie  is  such  faihire  of  proof.  The  jury 
are  not  at  liberty  to  adopt  unreasonable  theories  or  supposi- 
tions in  considering  the  evidence,  in  order  to  justify  a  vei'dict 
of  conviction,  as  to  any  defendant;  but  if  any  reasonable  view 
of  the  evidence  is  or  can  be  adopted,  which  admits  of  a  rea- 
sonable conclusion,  that  the  defendants,  or  any  of  them,  are,  or 
is,  not  guilty,  as  charged  in  the  indictment,  or  which  raises 
and  sustains  a  reasonable  doubt  of  said  guilt,  it  is  the  duty  of 
the  jury  to  adopt  such  view  of  the  evidence  and  acquit  those 
to  whom  that  conclusion  applies. 

12.  The  Reasonable  Doubt,  Defined. — A  reasonable  doubt  is 
that  state  of  the  mind,  which,  after  a  full  comparison  and  con- 
sideration of  all  the  evidence,  both  for  the  state  and  defense, 
leaves  the  minds  of  the  jury  in  that  condition  that  they  can- 
not say  that  they  feel  an  abiding  faith  amounting  to  a  moral 
certaintj^,  from  the  evidence  in  the  case,  that  the  defendants 
are  guilty  of  the  charge  as  laid  in  the  indictment.  If  you  have 
such  doubt — if  3"our  conviction  of  the  defendants'  guilt,  as  laid 
in  the  indictment,  does  not  amount  to  a  moral  certainty  from 
the  evidence  in  the  case — then  the  court  instructs  you  that  you 
must  acquit  the  defendants. 

13.  Rule  of  Evidence  Different  from  Civil  Cases.— The  court 
further  instructs  the  jury  that  this  is  not  a  civil  case,  but  it  is 
a  criminal  prosecution;  and  that  the  rules,  as  to  the  amount  of 
evidence  in  this  case,  are  different  from  those  in  a  civil  case 
and  a  mere  preponderance  of  evidence  would  not  warrant  the 
jury  in  finding  the  defendants  guilty,  but  before  the  jury  can 
convict  ihe  defendants  they  must  be  satisfied  of  their  guilt, 
beyond  all  reasonable  doubt,  and  unless  so  satisfied,  the  jury 
should  find  the  defendants  not  guilty. 

14.  If  the  Evidence  Fails  to  Establish  Guilt,  etc.,  Jury  3Iust 
Acquit, — The  court  instructs  the  jury,  that  in  criminal  cases, 
even  where  the  evidence  is  so  strong  that  it  demonstrates  the 
probability  of  the  guilt  of  the  parties  accused,  still  if  it  fails  to 
establish,  beyond  a  reasonable  doubt,  the  guilt  of  the  defend- 
ants, or  of  one  or  more  of  them,  in  manner  and  form  as  charged 
in  the  indictment,  then  it  is  the  duty  of  the  jui-y  to  acquit  any 


INSTKUCTIONS    IN    THE   ANAECHISTs'    CASE.  721 

defendant  or  defendants  as  to  whose  guilt  they  entertain  such 
reasonable  doubt. 

15.  Mere  Probabilities  not  Sufficient  to  Warrant  a  Conviction. — 

Tlie  jury  are  instructed,  that  mere  probabilities  are  not  sutH- 
cient  to  warrant  a  conviction;  nor  is  it  sufficient  that  the 
greater  weight  or  preponderance  of  the  evidence  supports  the 
allegations  of  the  indictment;  nor  is  it  sufficient  that  upon 
the  doctrine  of  chances  it  is  more  probable  that  the  defend- 
ants are  guilty.  To  warrant  a  conviction  of  the  defendants, 
or  any  of  them,  they  must  be  proved  to  be  guilty  so  clearly 
and  conclusively  that  there  is  no  reasonable  theory  upon  which 
they  can  be  innocent,  when  all  the  evidence  in  the  case  is  con- 
sidered together. 

16.  Personal  Opinions  not  to  be  the  Basis  of  Your  Verdict. — 

Your  personal  opinions  as  to  facts  not  proven  cannot  properly 
be  considered  as  the  basis  of  your  verdict.  You  may  believe, 
as  men,  that  certain  facts  exist,  but  as  jurors,  you  can  only  act 
upon  evidence  introduced  upon  the  trial,  and  from  that,  and 
that  alone,  you  must  form  your  verdict,  unaided,  unassisted 
and  uninfluenced  by  any  opinions  or  presumptions  not  formed 
npon  the  testimony. 

17.  The  Jury  the  Judges  of  the  Credibility  of  Witnesses. — The 

court  instruct  the  jury,  that  they  are  the  sole  judges  of  the 
facts  in  this  case,  and  of  the  credit  to  be  given  to  the  respect- 
ive witnesses  who  have  testified;  and  in  passing  upon  the 
credibility  of  such  witnesses  they  have  a  right  to  take  into 
consideration  their  prejudices,  motives  or  feelings  of  revenge, 
if  any  such  have  been  proven  or  shown  by  the  evidence  in 
this  case;  and  if  the  jury  believe,  from  the  evidence,  that  any 
witness  or  witnesses  have  knowingly  and  willfully  testified 
falsely  as  to  any  material  fact  or  point  in  this  case,  the  jury 
are  at  liberty,  unless  corroborated  by  other  credible  evidence, 
to  disregard  the  testimony  of  such  witness  or  witnesses  in 
toto. 

18.  TVliat    is    SuiTicient  to  Raise    a  Reasonable    Doubt. — The 
jury  are  instructed  that  if  there  is  any  one  single  fact  proved 

46 


722  INSTKUCTIONS  IN  THE  anarchists'  case. 

to  the  satisfaction  of  the  jury,  by  a  preponderance  of  evidence, 
which  is  inconsistent  with  the  guilt  of  the  defendants,  or  any 
of  them,  this  is  sufficient  to  raise  a  reasonable  doubt,  and  tlie 
jury  should  acquit  such  of  the  defendants  as  to  whom  such 
fact  has  thus  been  proved. 

19.  Wliat  will  Ju^itify  Inference  of  Guilt  from  Circnmstantial 
Evidence. — That  in  order  to  justify  an  inference  of  legal  guilt 
from  circumstantial  evidence,  the  existence  of  the  inculpatory 
facts  must  be  absolutely  incompatible  with  the  innocence  of  the 
accused  upon  any  rational  theory,  and  incapable  of  explana- 
tion upon  any  other  reasonable  hypothesis  than  that  of  their 
guilt. 

20.  Accomplices  as  Witnesses. — The  jury  are  instructed,  that 
the  witnesses,  Gottfried,  "Waller  and  Wilhelm  Seliger,  are 
what  is  known,  in  law,  as  accomplices,  and  that,  while  it  is  a 
rule  of  law  that  a  person  accused  of  crime  may  be  convicted 
upon  the  uncorroborated  testimony  of  an  accomplice,  still,  a 
jury  should  always  act  upon  such  testimony  with  great  care 
and  caution,  and  subject  it  to  careful  examination  in  the  light 
of  all  the  other  evidence  in  the  case,  and  the  jury  ought  not 
to  convict  upon  such  testimony  alone,  unless,  after  a  careful 
examination  of  such  testimony,  they  are  satisfied,  beyond  any 
reasonable  doubt,  of  its  truth,  and  that  they  can  safely  rely 
upon  it. 

21.  Inducements  Held   out  to  Accomplices  to  be  Considered. — 

The  jury  are  instructed  that  if  they  believe  from  the  evi- 
ence  that  the  witnesses,  Gottfried,  Waller  and  Wilhelm  Seliger, 
were  induced  to  become  witnesses  and  testify  in  this  case  by 
any  promise  of  immunity  from  punishment,  or  by  any  hope 
held  out  to  them,  or  either  of  them,  by  any  one,  that  it  would 
go  easier  with  them  in  case  they  disclosed  who  their  confed- 
erates were,  or  in  case  they  imj^licated  some  one  else  in  the 
crime,  then  the  jury  should  take  such  facts  in  consideration  in 
determining  the  weight  which  ought  to  be  given  to  their  tes- 
timony thus  obtained  and  given  under  the  influence  of  such 
promise  or  hope. 


INSTEUCTIOXS    IN    THE    ANARCHISTS'    CASE,  723 

22.  Persons  Indiicod  to  Become  Witnesses  by  Promises  of  Im- 
numity. — If  the  jury  believe,  from  tlie  evidence,  that  aiij  of 
tlie  witnesses  for  the  prosecution  were  induced  or  influenced 
to  become  witnesses  and  testify  in  this  case  by  any  promise  or 
intimation  of  immunity  from  pnnisliment,  or  by  any  ho)  e 
held  out  to  them  by  any  one  that  it  would  be  better  for  them 
or  go  easier  with  them  in  case  of  their  testifying  in  the  case, 
then  the  jury  should  take  such  facts  into  consideration  in  de- 
termifiing  the  weight  which  ought  to  be  given  to  such  testi- 
mony thus  obtained,  and  given  under  the  influence  of  such 
promise  or  hope.  Such  testimony  should  only  be  received  by 
the  jury  with  great  caution  and  scrutinized  with  great  care. 

23.  The  Jnry  Should  Act  with  Caution  npon  the  Evidence  of 
Accomplices. — The  court  instructs  the  jury  that,  while  it  is  the 
law  of  this  state,  that  a  person  accused  of  crime  may  be  con- 
victed upon  the  uncorroborated  testimony  of  an  accomplice  or 
accomplices,  still,  a  jury  should  always  act  upon  such  testimony, 
if  at  all,  with  great  caution  and  care,  and  subject  it  to  critical 
examination,  in  the  light  of  all  the  other  evidence  in  the  case; 
and  the  jury  ought  not  to  convict  upon  such  testimony  alone, 
unless,  after  a  careful  examination  of  such  testimony,  they  are 
satisfied,  beyond  any  reasonable  doubt,  of  its  truth,  and  that 
they  can  safely  rely  upon  it. 

24r.  Defendant's  Omission  to  Testify  Creates  no  Presumption 
against  Him. — The  court  instructs  the  jury,  that  while  the 
statute  of  this  state  provides  that  a  person  charged  with  crime 
may  testify  in  his  own  hehalf,  he  is  under  no  obligation  to  do 
so,  and  the  statute  expressly  declares  that  his  neglect  to  testify 
shall  not  create  any  presumption  against  him. 

25.  The  Jnry  Should  Endeavor  to  Reconcile  the  Testimony  of 
Defendants'  Witnesses. — The  jury  are  instructed,  that  in  passing 
upon  the  testimony  of  defendants'  witnesses,  in  this  case,  they 
should  endeavor  to  reconcile  their  testimony  with  the  belief 
that  all  the  witnesses  have  endeavored  to  tell  the  truth,  if 
they  can  reasonably  do  so  under  the  evidence,  and  if  reason- 
ably possible,  attribute  any  diflerences  or  contradiction?  in 
their  testimony,  if  any  exist,  to  mistake  or  misrecollection, 
rather  than  to  a  willful  intention  to  swear  falsely. 


724  INSTEUCTIONS    IN    THE    ANARCHISTS'    CASE. 

26.  The  Jury  Hare  no  Ri;5ht  to  Disregard  the  Testimony  of  the 
Defendants. — The  jury  have  np  right  to  disregard  the  testimony 
of  the  defendants  on  the  ground  alone  that  they  are  defend- 
ants and  stand  charged  witli  the  commission  of  a  crime.  The 
law  presumes  the  defendants  to  be  innocent  until  tliej  are 
proved  guilty,  and  the  law  allows  them  to  testify  in  their  own 
behalf,  and  the  jury  should  fairly  and  impartially  consider 
their  testimon3",  together  with  all  the  other  evidence  in  the 
case. 

27.  Rule  as  to  Verbal  Admissions  of  Defendants. — The  court 
further  instructs  the  jury,  that  when  tlie  verbal  admission  of  a 
person  charged  with  crime  is  offered  in  evidence,  the  whole  of 
the  admission  must  be  taken  together,  as  well  that  part  which 
makes  for  the  accused  as  that  which  may  make  against  him,  and 
if  part  of  the  statement,  which  is  in  favor  of  the  defendants,  is 
not  disproved  and  is  not  apparently  improbable  or  untrue, 
when  considered  with  all  the  other  evidence  in  the  case,  then 
such  part  of  the  statement  is  entitled  to  as  much  consideration, 
from  the  jury,  as  any  other  part  of  the  statement. 

28.  Improper  for  the  Jury  to  Regard  Statements  of  the  Prosecnt- 
ing  Attorney. — The  jury  are  instructed,  that  it  would  be  highly 
improper  and  wrong  for  them  to  regard  any  statements  of  the 
prosecuting  attorneys  that  are  not  based  on  the  evidence  in 
the  case,  if  any  such  have  been  made,  as  entitled  to  any  weight 
whatever  in  this  case. 

29.  The  Rule  Wliere  Conviction  is  Sought  npon  Circumstantial 
Evidence. — The  jury  are  instructed,  as  a  matter  (^i  law.  that 
where  a  conviction  for  a  criminal  offense  is  sought  upon  cir- 
cumstantial evidence  alone,  the  ])eople  must  not  only  show  by 
a  preponderance  of  evidence,  that  the  alleged  facts  and  cir- 
cumstances are  true,  but  they  must  be  such  facts  and  circum- 
stances as  are  absolutely  incompatible,  upon  any  reasonable 
hypothesis,  with  the  innocence  of  the  accused,  and  incapable 
of  explanation,  upon  any  reasonable  hypothesis  other  than  that 
of  the  guilt  of  the  accused.  And  in  this  case,  if  all  the  facts 
and  circumstances  relied  on  by  the  people  to  secure  a  convic- 
tion can  be  reasonably  accounted  for  upon  any  theory  consist- 


INSTKUCTIONS    IN    THE   ANAKCUISTs'    CASE.  725 

cnt  with  the  innocence  of  the  defendants,  or  any  of  them, 
then  the  jury  shuuld  acquit  tlie  defendants,  or  such  of  thcni 
as  to  whom  the  facts  proven  can  fhus  be  accounted  for. 

30.  Proof  that  the  Defendants  Contemplated  the  Commission  of 
the  Crime,  not  Enough  to  Warrant  Tlieir  Conviction. — It  is  not  enough 
to  warrant  the  conviction  of  a  person  accused  of  crime,  that  he 
contemplated  the  commission  of  such  crime.  The  actual  com- 
mission of  such  crime  by  the  accused,  or  the  proof  of  such 
facts  as  will  satisfy  the  jury,  beyond  all  reasonable  doubt,  of 
the  guilt  of  the  accused,  must  be  presented,  and  if  any  reason- 
able hypothesis  exists  that  such  crime  may  have  been  committed 
by  another  in  no  way  connected  with  the  defendants,  the  ac- 
cused should  be  acquitted. 

31.  The  Rule  Where  the  Evidence  Shows  Conduct  of  no  Less 
Turpitude  than  the  Crime  Charged. — The  jury  are  further  instruct- 
ed, that  if  the  evidence  leaves  a  reasonable  doubt  in  the  mind  of 
the  jury,  whether  the  defendants  are  guilty  of  the  crime  with 
which  they  are  charged  in  the  indictment,  then  the  jury  should 
find  the  defendants  not  guilty;  although  the  evidence  may 
show  conduct  of  no  less  turpitude  than  the  crime  charged, 
that  is  not  enough  to  authorize  a  conviction  in  this  trial. 

32.  Allusions  and  References  of  the  Prosecuting  Attorney  to 
Dangerous  Views  Entertained  by  Defendants. — The  court  further 
instructs  the  jury,  that  the  allusions  and  references  of  the 
prosecuting  attorneys  to  the  su])]xjsed  dangerous  character  of 
any  views  entertained,  or  princij)le3  contended  for,  by  the 
defendants,  or  any  of  them,  should,  in  no  way,  influence  or 
prejudice  your  minds  against  the  defendants  in  this  case;  your 
duty  is  discharged  when  you  have  determined  their  guilt  or 
innocence  of  the  charge  contained  in  this  indictmentj  and  there 
is  no  other  question  involved  in  this  case.  I 

33.  The  Right  to  Arm  for  Defense  and  Protection. — Individuals 
and  communities  have  the  legal  right  to  arm  themselves  for 
the  defense  and  protection  of  their  persons  and  property,  and 
a  proposition  by  any  person  publicly  proclaimed  to  arm  for 
such  protection  and  defense  is  not  an  ofliense  against  the  laws 
of  this  state. 


72G  INSTRUCTIONS    IN    THE    ANAECHiSTs'    CASE. 

34.  Right  to  Repel  an  Illegal  Attack  by  Force. — The  jury  are 
instructed,  that  if  the  defendants,  or  some  of  them,  agreed 
together  or  with  others,  that'in  the  event  of  the  workingmen 
or  strikers  being  attacked,  they  (defendants)  would  assist  the 
strikers  to  resist  such  attack,  before  you  can  find  that  such 
agreement  constituted  a  consiuracy,  jou  must  be  satisfied,  be- 
yond all  reasonable  doubt,  that  such  contemplated  or  antici- 
pated assault  or  attack  to  be  resisted,  as  aforesaid,  was  justified 
and  lawful,  and  that  such  contemiilated  resistance  was  illegal. 
And  if,  on  the  other  hand,  such  contemplated  or  anticipated 
assault  or  attack  was  unjustified  and  illegal,  and  such  coutem- 
plated  resistance  simply  the  opposing  of  force,  wrongfully  and 
illegally  exercised,  by  force  sufticient  to  repel  the  said  assault, 
then  the  facts  assumed  in  this  instruction  do  not  constitute 
conspiracy. 

35.  Burden  Not  on  the  Defendants  to  ShoAV  Who  Threw  the 
Bomb. — The  defendants  do  not  assume  the  burden  of  yjroof  in 
this  case  at  any  stage  of  the  proceedings,  and  the  burden  is 
not  cast  upon  them  to  prove  that  the  person  who  threw  the 
bomb  was  not  acting  under  their  advice,  teaching  or  procure- 
ment; therefore,  unless  the  prosecution  has  established  in  the 
minds  of  the  jury,  beyond  all  reasonable  doubt,  that  some  of 
the  defendants  threw  the  said  bomb,  or  that  the  person  who 
did  so  throw  the  same  was  acting  under  the  advice  and  pro- 
curement of  the  defendants,  or  some  of  them,  the  defendants, 
and  all  of  them,  should  be  acquitted.  Such  advice  ma}'  not 
necessarily  be  as  to  the  bomb,  but  generally,  so  as  to  include  it. 

36.  There  Must  Be  a  Direct  Connection  between  the  Advice  anl 
the  Consummation  of  the  Crime. — It  will  not  do  to  guess  away 
the  lives  or  liberty  of  the  people,  nor  is  it  proper  that  the 
jury  should  guess  that  the  person  who  threw  the  bomb  which 
killed  Degan  was  instigated  to  do  the  act  by  the  procurement 
of  the  defendants,  or  any  of  them;  that  fact  must  be  estab- 
lished beyond  all  reasonable  doubt  in  the  minds  of  the  jury, 
and  it  will  not  do  to  say  that  because  the  defendants  may  have 
advised  violence,  therefore,  when  violence  came,  it  was  the 
result  of  such  advice.  There  must  be  a  direct  connection 
established,  by  credible  testimony,  between  the  advice  and  the 


INSTRUCTIONS    IN    THE    ANAKCillSTs'    CASE.  727 

consummation  of  the  crime,  to  the  satisfaction  of  the  jury  be- 
yond a  reasonable  doubt. 

37.  The  Person  Who  Threw  the  Bomb  Must  Have  Been  Acting 
under  the  Teachinu;  of  the  Defendants,  etc. — Although  the  defend- 
ants, or  some  of  them,  may  have  spoken,  written  or  published 
their  views  to  the  effect  that  a  social  revolution  should  be 
brought  about  by  force,  and  that  the  ofhcers  of  the  law 
should  be  resisted,  and  to  this  end  dynamite  should  be  used 
to  the  extent  of  taking  human  life;  that  ])ersons  should  arm 
to  resist  the  law,  and  that  the  law  should  be  throttled  and 
killed,  and  although  such  language  might  cause  persons  to 
desire  to  carry  out  the  advice  given,  as  aforesaid,  and  do  the 
act  wliich  caused  officer  Degan's  death,  yet  the  bomb  might 
have  been  thrown  and  Degan  killed  by  some  one  unfamiliar 
with,  and  unprompted  by  the  teachings  of  the  defendants,  or 
any  of  them. 

Therefore  the  jury  must  be  satisfied,  beyond  all  reasonable 
doubt,  that  the  person  throwing  said  bomb  was  acting  as  the 
result  of  the  teaching  or  encouragement  of  the  defnndants,  or 
some  of  them,  before  the  defendants  can  be  held  liable  there- 
for, and  this  you  must  find  from  the  evidence. 

38.  Not  Liable  for  the  Throwing  of  the  Bomb  Unless  it  was  in 
Furtherance  of  the  Common  Design. — If  you  find  at  a  meet- 
ing, held  May  3d,  at  54  W.  Lake  street,  at  which  some 
of  the  defendants  were  present,  it  was  agreed,  that  in  the 
event- of  a  collision  between  the  police,  the  militia  or  fire- 
men and  the  striking  laborers,  certain  armed  organizations 
of  which  some  of  the  defendants  were  members,  sliould 
meet  at  certain  places  in  Chicago,  that  a  committee  should 
attend  public  places  and  meetings  where  an  attack  by  the 
police  and  others  might  be  expected,  and  in  the  event  of 
such  attack,  report  the  same  to  said  organization  to  the  end 
that  such  attack  might  be  resisted  and  the  police  stations  of 
the  city  destroyed,  still,  if  the  evidence  does  not  prove,  beyond 
all  reasonable  doubt,  that  the  throwing  of  the  bomb  which 
killed  Matthias  J.  Degan,  was  the  result  of  any  act  in  further- 
ance of  the  common  design  herein  stated,  and  if  it  may  have 
been  the  unauthorized  and  individual  act  of  some  person  act- 


728  INSTKUCTIONS    IN    THE    ANAKCIIISTs'    CASE. 

ing  upon  his  own  responsibility  and  volition,  then  none  of 
the  defendants  can  be  held  responsible  therefor  on  account  of 
said  West  Lake  street  meeting. 

IKSTEUCTIONS  GIVEN  BY  THE  COUET  ON  ITS  OWN  MOTION. 

1.  Instructions  to  be  in  Writing — Practice. — The  statute  re- 
quires that  instructions  by  the  court  to  the  jury  shall  be  in 
writing  and  only  relating  to  the  law.  The  practice  under  the 
statute  is,  that  the  counsel  should  prej;are,  on  each  side,  a  set 
of  instructions  and  present  them  to  the  court,  and,  if  approved, 
to  be  read  by  the  court  as  the  law  of  the  case. 

2.  Jury  to  Scrutinize  all  Instructions. — It  may  have  been,  by 
reason  of  the  great  number  presented,  and  the  hui'ry  and 
confusion  in  the  midst  of  the  trial,  with  a  large  audience  to 
keep  in  order,  that  there  should  be  some  apjiareut  inconsist- 
ency, but  if  they  are  carefully  scrutinized  such  inconsistency 
will  probably  disappear;  in  any  event,  however,  the  gist  or 
pith  of  all  is,  that  if  advice  and  encouragement  to  murder  was 
given,  and  if  murder  was  done  in  pursuance  of  and  immedi- 
ately induced  by  such  advice  and  encouragement,  then  those 
who  gave  such  advice  and  encouragement  are  guilty  of  murder. 

3.  General  Rule  of  Law  Apiilying  to  the  Case. — If  the  evidence, 
either  direct  or  circumstantial,  or  both,  proves  the  innocence 
of  one  or  more  of  the  defendants  so  fully  that  there  is  no  rea- 
sonable doubt  of  it,  then  your  duty  to  them  requires  you  to 
acquit  them.  If  it  does  so  prove  them  guilty,  then  your  duty 
to  the  state  requires  you  to  convict  whoever  is  so  proved 
ffuiltv.  The  acts  of  each  defendant  should  be  considered  with 
the  same  care  and  scrutiny  as  if  he  alone  were  on  trial.  If  a 
conspiracy  having  violence  and  murder  as  its  object  is  fully 
proved,  then  the  acts  and  declarations  of  each  conspirator  in 
furtherance  of  the  conspiracy  are  the  acts  and  declarations  of 
each  one  of  the  conspirators;  but  the  declarations  of  any  con- 
spirator before  or  after  May  4th,  which  are  merely  narrative  as 
to  what  lias  been  or  would  be  dune,  and  not  made  to  aid  in 
carrying  into  etfect  the  object  of  the  conspiracy,  are  only  evi- 
dence aijainst  the  one  who  makes  them.     What  was  the  fact 


INSTKUOTIONS    IN    THE    ANARCHISTS'    CASE.  729 

and  what  arc  tlic  facts  the  jury  must  determine  from  the  evi- 
dence, and  from  that  alone.  If  there  are  any  unguarded  ex- 
pressions in  any  of  tlio  instructions  which  seem  to  assume  the 
existence  of  any  facts,  or  to  be  any  intimation  as  to  what  is 
proved,  all  such  expressions  must  be  disregarded  and  the  evi- 
dence only  looked  to  to  determine  the  fact. 

INSTEUCTION  ON    MANSLAUGHTER  GIVEN    FOR  THE  DEFENDANTS. 

1.  Manslaughter  Defined — Jury  May  Find  Defendants  Guilty  of 
Manslaughter. — The  court  instructs  the  jury,  in  the  words  of 
the  statute,  that  manslaughter  is  the  unlawful  killing  of  a 
human  being,  without  malice  express  or  implied,  and  without 
any  mixture  of  deliberation  whatever.  It  must  be  voluntary 
on  the  sudden  heat  of  passion,  caused  by  provocation  appar- 
ently sufficient  to  make  the  passion  irresistible,  and  involuntary 
in  the  commission  of  the  unlawful  act,  or  without  willful  act 
and  without  due  cause  or  circumspection.  Whoever  is  guilty 
of  manslaughter,  shall  be  imprisoned  in  the  penitentiary  for 
his  natural  life  or  for  any  number  of  years.  If  the  accused  is 
found  guilty  by  the  jury,  they  sliould  fix  the  punishment  by 
their  verdict.  The  jury  are  instructed  that  under  an  indict- 
ment for  murder,  a  part  of  the  accused  maybe  found  guilty  of 
manslaughter;  and  if,  in  this  case,  after  a  full  and  careful  con- 
sideration of  all  the  evidence  before  you,  you  believe,  beyond  a 
reasonable  doubt,  that  the  defendants,  or  any  one  of  them,  are 
guilty  of  manslaughter,  you  may  so  find  by  your  verdict. 


CHAPTER  LVII. 
INTOXICATING  LIQUOES. 


SALES  GENERALLY. 

Sec.     1.  What  constitutes  the  offense. 

2.  Burden  of  proof  as  to  license. 

3.  One  sale,  delivered  at  dift'erent  times. 

4.  Sales  by  servant  or  employe. 

5.  When  not  liable  for  the  act  of  the  servant. 

6.  Charge  must  be  proved  as  alleged. 

7.  Sales  by  alleged  agent — Agency  must  be  provod. 

8.  Single  transaction  one  offense. 

SALES  TO  MINORS. 

9.  The  offense. 

10.  Burden  of  proof  as  to  written  order. 

11.  Knowledge  of  minority  immaterial. 

12.  Knowledge  and  intent  material. 

SELLING  TO  I'ERSONS  IN  THE  HABIT  OF  GETTING  INTOXICATED. 

Sec.  13.  The  offense. 

14.  Meaning  of  the  term  "  in  the  habit." 

15.  Intent  necessary. 

16.  Knowledge  or  criminal  intent  necessary. 

17.  The  habit  must  exist  at  the  time. 

18.  In  the  habit  of  drinking,  not  enough. 

19.  Drunkenness  defined. 

SALES  GENERALLY. 

§  1.  What  Constitutes  the  Offense. — The  court  instructs  the 
jury,  that  in  order  to  find  the  defendant  guilty,  it  is  only 
necessary  that  the  jury  believe,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  the  defendant,  either  by  himself,  his 
agent  or  servant,  within  [eigJtteen)  months  before  the  day  of, 
etc.,  at  and  within  the  county  of  W.,  sold  or  gave  away  in- 
toxicating h'quors  in  less  quantities  than,  etc.,  the  said  defend- 
ant not  having  a  license  to  sell  the  same.  It  is  not  necessary 
to  prove  that  the  sale  or  giving  away  was  on  the   day  laid  in 

(730) 


INTOXICATING    LIQUORS.  731 

tlic  indictment,  nor  that  the  defendant  himself  actually  dealt 
out  the  liquor. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant,  either  as  princii)al  or  as  clerk,  serv- 
ant or  bar-tender,  sold  or  i!;ave  away  intoxicating  liquor  in 
less  quantity  than,  etc.,  within  this  county,  and  within  {eighteen) 
months  before  the  iinding  of  this  indictment,  without  having 
first  obtained  a  license  therefor,  as  chai-ged  in  the  indictment, 
then  the  jury  should  find  the  defendant  guilty. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant,  either  by  himself  or  by  another 
]")erson,  as  his  agent  or  servant,  sold  or  gave  away  intoxicating 
liquors  in  less  quantities  than,  etc.,  in  manner  and  form  as 
charged  in  the  indictment,  then  the  jury  should  find  the  de- 
fendant guilty  upon  as  many  of  the  counts  of  the  indictment 
as  there  are  of  such  sales  or  giving  away  of  liquor  so   proven. 

§  2.  Burden  of  Proof  as  to  License.— If  the  jury  believe, 
from  the  evidence,  beyond  a  reasonable  doubt,  that  tlie  de- 
fendant by  himself,  agent  or  servant,  made  the  sales,  as 
charged  in  the  indictment,  then  it  is  not  necessary  for  the 
people  to  show,  by  proof  in  the  first  instance,  that  he  had  no 
license  to  sell  intoxicating  liquors.  That  is  a  matter  of  de- 
fense, and  should  be  proved  by  the  defendant  if  he  had  such 
license.  Potter  vs.  Deyo,  19  Wend.,  3H1;  1  Greenl.  Ev., 
§  79;  Smith  vs.  Joice,  12  Barb.,  21;  Wharton  Grim.  L.,  2431; 
Pendergrast  vs.  Peru,  20  111.,  51;  Gerring  vs.  State,  1  Mc- 
Cord,  573;   Contra:  Mehan  vs.  State,  7  Wis.,  670 

§  3.  One  Sale  Delivered  at  Different  Times. — If  the  jury  be- 
lieve, from  the  evidence,  that  the  defendant,  on  the  occasion 
testified  to  by  the  witnesses,  sold  to  the  said  A.  B.  (one  gallon) 
and  no  less,  and  that  the  quantity  so  sold  was  drawn  from  the 
cask  and  placed  in  a  keg  (or  bottles)  separate  by  itself  and  set 
away  for  the  said  A.  B.  as  his  proj^erty  and  charged  to  him 
(or  paid  for  by  him),  then  in  such  case  the  title  to  the  whole 
quantity  so  sold  and  set  apart  passed  to  the  purchaser,  althougli 
he  may  have  taken  away  but  a  part  of  it  at  the  time  of  the 
sale,  and  in  such  case  it  is  a  matter  of  no  consequence  whafj 
may  have  been  the  motives  of  the  parties  in  making  such  sale, 


732  INTOXICATI>'G    LIQUORS. 

and  the  jury  should  Hiid  for  the  defendunt.     Dolson  vs.  State, 
57  Ind.,  69. 

§  4.  Sales  by  Servant  or  Employe. — If  the  jury  believe,  from 
the  evidence,  beyond  a  reasonable  doubt,  that  the  defendant 
was  keeping  a  saloon,  at  the  time  in  question,  at  S.,  in  this 
county,  and  that  the  witnesses  who  have  testitied  in  this  case, 
or  any  of  them,  obtained  intoxicating  liquors  at  such  saloon  in 
less  quantities  than,  etc.,  within  {eighteen)  months  before  the 
finding  of  this  indictment,  then  the  defendant  is  liable,  whether 
such  liquor  was  furnished  by  himself  or  by  his  employe  or  bar- 
tender;  provided,  the  jury  further  believe,  from  the  evidence? 
that  the  defendant,  at  the  time,  had  no  license  to  sell  such 
liquors. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  intoxicating  liquors  were  obtained  at  the  saloon, 
etc.,  as  claimed  by  the  prosecution,  and  that  the  saloon  where 
such  liquors  were  obtained  belonged  to  the  defendant,  and 
was  at  the  time  in  his  possession,  or  under  his  control,  then, 
if  there  is  no  evidei  ce  to  the  contrary,  the  presumption  of  law 
would  be  that  the  liquors  so  obtained  were  sold  by  the  de- 
fendant, either  by  himself,  his  agent  or  servant. 

§  5.  "Wlien  not  Liable  for  Act  of  Servant. — If  a  clerk  or 
bar-keeper  in  a  saloon  sell  intoxicating  liquor,  without  the 
knowledge  and  against  the  instructions  of  his  employer,  the 
latter  is  not  criminally  responsible  for  the  act.  Lathro])  vs. 
State,  51  Ind.,  192;   Com.  vs.  Putnam,  4  Gray,  16. 

Though  the  jury  may  believe,  from  the  evidence,  that  the 
said  A.  B.  obtained  intoxicating  liquors  at  defendant's  place  of 
business  from  one  W.,  who  was  then  acting  as  the  agent  or 
servant  of  defendant,  as  alleged,  still,  if  the  jury  further 
believe,  from  the  evidence,  that  before  that  time  the  defend- 
ant had  instructed  the  said  agent  or  servant,  in  good  faith,  not  to 
sell  or  give  away  intoxicating  liquors,  and  with  a  lonafide  intent 
to  have  such  instructions  obeyed,  and  further,  that  the  said  W., 
in  selling  or  giving  away  said  liquors,  was  acting  in  violation 
of  said  instructions,  and  against  the  wishes  of  the  defendant, 
then  the  jury  should  lind  the  defendant  not  guilty  of  the  sale 
80  made. 


INTOXICATING    LIQUOKS.  733 

A  sale  by  an  agent,  against  the  known  will  and  instructions 
of  his  principal,  will  not  render  the  principal  liable.  Ander- 
son vs.  State,  22  Ohio  St.,  305. 

Although  the  jury  may  believe,  from  the  evidence,  that  the 
bar-tender  of  the  defendant  sold  intoxicating  liquor  to  the  said 
A.  B.,  as  charged  in  the  indictment,  and  that  the  said  A.  B. 
was  at  the  time  a  person  in  the  habit  of  getting  intoxicated,  still, 
if  the  jury  further  believe,  from  the  evidence,  that  such  sale 
was  without  the  knowledge  or  consent  of  the  defendant,  and 
against  his  wishes,  then  the  defendant  would  not  be  liable 
therefor,  and  the  jury  have  no  right  to  presume  that  the 
defendant  authorized  his  bar-tender  to  make  such  sale  simply 
because  he  was  employed  as  bar-tender  at  defendant's  saloon; 
if  the  jury  find  there  is  no  evidence  to  the  contrary,  the  pre- 
sumption of  law  is,  that  the  bar- tender  only  had  authority  from 
the  defendant  to  make  such  sales  as  were  lawful.  State  vs. 
Mahoney,  23  Minn.,  181. 

§  6.  Charge  Must  be  Proved  as  Alleged. — The  jury  are  in- 
structed, that  the  crime  charged  against  the  defendant  in  the 
indictment  in  this  case,  is  that  of  having  sold  intoxicating 
liquors  without  a  license  to  sell  the  same ;  and  unless  the  prose- 
cution has  proved  some  one  or  more  of  the  sales  charged  in 
the  indictment,  beyond  a  reasonable  doubt,  the  jury  should 
find  the  defendant  not  guilty. 

Unless  the  jury  believe,  from  the  evidence,  beyond  a  reason- 
able doubt,  that  the  defendant  made  some  one  or  more  of  the 
sales  charged  against  him,  either  as  principal,  agent,  clerk  or 
servant,  within  {eighteeii)  months  before  the  finding  of  the  in- 
dictment in  this  case,  then  the  jury  must  find  the  defendant 
not  guilty. 

The  jury  are  instructed,  that  in  this  case  it  is  not  indispen- 
sable for  the  people  to  show  that  the  defendant  himself  actu- 
allv  sold  or  furnished  the  liquors  in  question  to  (Me  loitnesses). 
It  is  sufiicient,  if  the  jury  believe,  from  the  evidence,  beyond 
a  reasonable  doubt,  that  the  liquors  were  sold  as  charged  in 
the  indictment  by  the  defendant,  or  his  agents  or  servants, 
at  any  time  within  {eighteen)  months  before  the  finding  of  the 
indictment,  and  that  at  the  time  the  defendant  had  no  license 
to  sell  intoxicating  liquors. 


734  INTOXICATING    LIQUORS. 

§  7.  Sales  by  Alleged  Agent — Agency  must  be  Proved. — Al- 
though the  jury  may  believe,  from  the  evidence,  that  one  A. 
B.,  at  the  time  and  place  alleged,  did  unlawfully  sell  intoxL 
eating  liquors,  still,  unless  the  prosecution  have  proved  by 
evidence  so  as  to  satisfy  the  jury,  beyond  any  reasonable  doubt, 
that  the  said  A.  B.  when  he  made  such  sales  was  acting  as  the 
agent,  clerk,  bar-tender  or  servant  of  the  defendant,  then,  as 
to  such  sales  made  by  the  said  A.  B.,  the  jury  should  find  the 
defendant  not  guilty. 

§  8.  Single  Transaction  One  Offense. — The  jury  ai'e  instructed, 
that  where  two  or  more  glasses  of  intoxicating  liquor  are 
called  for  by  one  person,  and  are  sold  at  one  time  as  part  of 
the  same  transaction,  and  all  paid  for  by  the  same  person,  such 
transaction  constitutes  but  one  selling  within  the  meaning  of 
the  law  under  which  this  prosecution  is  brought. 

SALE  TO  MINOES. 

§  9.  Sale  to  Minors. — If  the  jury  believe,  from  the  evidence, 
beyond  a  reasonable  doubt,  that  the  defendant,  by  himself, 
agent  or  servant,  within  {eigJiteen)  months  before  the  finding 
of  the  indictment  in  this  case,  within  this  county,  sold  or  gave 
away  any  intoxicating  liquor  to  A.  B.,  and  that  at  that  tim3 
the  said  A.  B.  was  under  the  age  of  twenty-one  j-ears,  and 
further,  that  such  sale  was  made  without  a  written  order  of 
the  parents,  guardian  or  family  physician  of  the  said  A.  B. 

then  the  jury  should  find  the  defendant  guilty  under  the 

count  of  the  indictment. 

§  10.  Burden  of  Proof  as  to  Written  Order. — The  jury  are 
instructed,  that  all  that  is  necessary  for  the  prosecution  to 
prove,  in  order  to  wai-rant  a  conviction  in  this  case,  is  to  sat- 
isfy the  minds  of  the  jury  by  the  evidence,  and  beyond  any 
reasonable  doubt,  that  the  defendant,  by  himself,  agent  or 
servant,  at  and  within  this  county,  within  {eighteen)  months 
before  the  finding  of  this  indictment,  sold  or  gave  intoxicating 
liquors  to  either  of  the  parties,  as  charged  in  the  indictment, 
and  that,  at  that  time,  the  person  to  whom  the  sale  was  made, 
or  the  liquor  given,  was  a  minor  under  the  age  of  twenty-one 


INTOXICATING    LIQUORS.  735 

years;  provided,  the  defendant  has  failed  to  show  that  he  had 
a  written  order,  etc. 

The  fact  of  the  defendant  having  a  written  order  from  par- 
ents, guardian  or  family  physicians  autliorizing  a  sale  to  a 
minor,  is  a  matter  of  defense,  and  if  the  people  liave  proved 
to  the  jury  by  the  evidence,  beyond  a  reasonable  doubt,  the 
sale  or  giving  of  intoxicating  liquors  to  a  minor,  as  charged  in 
the  indictment,  then  the  jury  should  find  defendant  guilty; 
unless  the  jury  believe,  from  the  evidence,  that  at  the  time  of 
such  sale  he  had  such  written  order.  State  vs.  Cornan^  48 
la.,  567. 

§  11.  Knowledge  of  Minority  Immaterial. — The  jury  are 
instructed,  that  if  they  believe,  from  the  evidence,  that  the 
defendant  by  himself,  his  agent  or  servant,  sold  or  gave  intox- 
icating liquor  to  the  said  A.  B.,  and  that  the  said  A.  B.  was 
at  that  time  a  minor,  under  the  age  of  twenty-one  years,  then 
it  is  wholly  immaterial  whether  the  defendant  knew,  or  did 
not  know,  that  the  said  A.  B.  was  a  minor,  nor  whether  the  said 
defendant  was  himself  deceived  in  regard  to  the  age  of  the  f  aid 
minor.  A  person  engaged  in  the  business  of  selling  intoxicat- 
inor  liquors,  sells  to  a  minor  at  his  peril,  and  is  equally  guilty 
whether  he  knows,'  or  does  not  know,  the  age  of  the  person  to 
whom  he  is  selling.  State  vs.  Ilartjie lei,  24  Wis.,  60;  Com.xs. 
Jimjuons,  98  Mass.,  6;  3  Greenl.  Ev.,  §  21;  State  vs.  Cain, 
9  W.  Ya.,  559;  Com.  vs.  Flnne(jayi,  124  Mass.,  324;  Roljonje 
vs.  Burnham,  124  Mass.,  277;  McCutcheon  vs.  People,  69 
111.,  601. 

§  12.  Knowledge  and  Intent  Material. — The  jury  are  in- 
structed, as  a  matter  of  law,  that  intent  is  necessary  to  the 
commission  of  a  crime,  and  it  is  a  good  defense  to  a  charge  of 
selling  intoxicating  drink  to  a  minor,  that  the  dealer  had  good 
reason  to  believe,  and  did  believe  him  to  be  of  age.  Whether 
in  this  case  the  defendant  did  sell  to  a  minor,  and  whether  he 
took  reasonable  care  to  find  out  whether  the  said  A.  B.  was  a 
minor,  and  w^hether  he,  in  good  faith,  believed  him  to  be 
over  the  age  of  twenty-one  years,  are  questions  of  fact  to  be 
determined  by  the  jury,  from  tlie  evidence  in  the  case.  Faul- 
ler  vs.  People,  39  Mich.,  200 ;  Bobbins  vs.  State,  63  Ind.,  235; 


736  INTOXICATING    LIQUORS. 

Anderson  vs.  State^  22  St.  Ohio,   305;  Acller  vs.  State,  55 
Ala.,  16. 

SELLING  TO  A  PERSON  IN  THE  HABIT,  ETC. 

§  13.  Selling  to  a  Pei-son  in  the  Habit,  etc. — The  court  in- 
structs the  jury,  that  by  the  laws  of  this  state  it  is  unlawful 
for  any  person,  by  himself,  or  by  his  agent  or  servant,  to  sell 
or  give  intoxicating  liquor  to  a  person  when  he  is  intoxicated, 
or  to  a  person  who  is  in  the  habit  of  getting  intcxicated. 

The  jury  are  instructed,  that  if  they  believe,  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that  the  defendant  either 
in  person  or  by  his  agent  or  servant,  within  {eighteen  months) 
before  the  finding  of  the  indictment  in  this  case,  sold  or  gave 
to  A.  B.  intoxicating  liquor,  and  further,  that  the  said  A.  B., 
at  the  time  of  such  selling  or  giving,  was  a  person  in  the 
habit  of  getting  intoxicated,  then  the  jury  should  find  the 
defendant  guilty. 

§  14.  Meaning  of  the  Words  "  in  the  Habit  of  Getting  Intox- 
icated,"— The  court  further  instructs  the  jury,  that  in  giving  a 
construction  to  the  statute  under  which  this  indictment  was 
found,  the  jury  should  give  to  the  words  "in  the  habit  of 
getting  intoxicated,"  their  common  ordinary  signification  and 
meaning ;  the  words  mean  in  the  law  just  what  they  mean  in 
common,  ordinary  conversation. 

§  15.  Intent  Necessary. — Although  the  jury  may  believe, 
from  the  evidence,  that  the  dofen  'ant  sold  intoxicating  liquors 
to  the  said  A.  B.,  as  charged  in  the  indictment,  and  that  the 
said  A.  B.  was  at  the  time  a  person  in  the  habit  of  getting  in- 
toxicated, still  if  the  jury  further  believe,  from  the  evidence, 
that  before  making  such  sale,  defendant  made  inquiry  of  per- 
sons well  acquainted  with  the  said  A.  B.,  as  to  whether  he  was 
in  the  habit  of  getting  intoxicated,  and  was  told  that  he  was 
not,  and  that  the  defendant  used  j-easonable  care  before  selling 
said  liquor,  in  good  faith,  to  ascertain  wliether  the  said  A.  B. 
was  in  the  habit  of  getting  intoxicated,  and  that  when  he  sold 
the  said  liquor  he  honestly  and  in  good  faith  believed  that  the 
said  A.  B.  was  not  in  the  habit  of  getting  intoxicated,  then 


INTOXICATING    LIQUOES.  737 

the  jury  should  find  tho  defendant  not  guilty.     Crdbtree  vs. 
State,  30  Ohio  St.,  382. 

§  16.  Knowledge  or  Criminal  Intent  Necessary. — Tlie  jury  are 
instructed,  that  if  they  believe,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  the  defendant  sold  or  gave  to  the  said 
A.  B.,  intoxicating  liquor,  as  charged  in  the  indictment,  and 
that  the  said  A.  B.  was,  at  the  time,  in  "the  habit  of  getting 
intoxicated,  then  it  is  wholly  immaterial  whether  the  defend- 
ant knew  or  did  not  know  that  the  said  A.  B.  was  a  person  in 
the  habit  of  getting  intoxicated.  A  person  engaged  in  the 
business  of  selling  intoxicating  drinks,  selling  to  a  person  who 
is  in  the  habit  of  getting  intoxicated,  sells  at  his  peril,  and  he 
is  equally  guilty  whether  he  does  or  does  not  know  the  habits 
of  the  person  to  whom  he  is  selling.  Barnes  vs.  The  State, 
19  Conn.,  397. 

§  17.  Habit  Must  Exist  at  the  Time,  etc. — The  jury  are 
instructed,  that  although  they  may  believe,  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that  the  said  A.  B.  was  at 
one  time  addicted  to  the  use  of  intoxicating  liquor,  so  as  to  be 
in  the  habit  of  getting  intoxicated,  still,  if  the  jury  further 
find,  from  the  evidence,  that  before  the  time  of  the  alleged 
sale  in  question  in  this  suit  the  said  A.  B.  had  reformed,  or 
partially  reformed,  his  habits  in  that  respect,  and  was  not,  at 
the  time  in  question,  in  the  habit  of  getting  intoxicated,  then 
the  jury  should  find  the  defendant  not  guilty. 

The  court  instructs  the  jury,  that  unless  the  prosecution 
have  proved,  by  the  evidence,  to  the  satisfaction  of  the  jury, 
beyond  a  reasonable  doubt,  that  the  said  defendant  did,  by 
himself,  agent  or  servant,  sell  or  give  to  tlie  said  A.  B.  intox- 
icating liquors,  and  also  that  the  said  A.  B.  was,  at  the  time 
of  such  sale  or  giving  away,  a  person  then  in  the  habit  of 
getting  intoxicated,  the  jury  should  find  the  defendant  not 
guilty. 

The  court  further  instructs  the  jury,  on  the  part  of  the  de- 
fendants, as  a  matter  of  law,  that  before  they  can  convict  the 
defendants  they  must  believe,  from  the  evidence,  beyond  a 
reasonable  doubt,  that  the  person  named  in  the  indictment 
had  been  in  the  habit  of  getting  intoxicated  at  the  time 
47 


738  INTOXICATING    LIQUORS. 

of  the  allegod  sale,  and  whether  lie  was  or  not  in  such  habit 
is  a  question  for  the  jurj  to  determine,  from  all  the  evidence 
in  the  case.  Gallagher  vs.  The  Peojyle,  11  JN".  E.  Rep.,  335; 
120  111.,  179. 

§  18.  In  the  Habit  of  Drinking,  Not  Enongh. — The  jury  are 
instructed,  that  it  is  not  enough  to  warrant  a  conviction  in  this 
case,  tliat  it  shall  appear,  from  the  evidence,  beyond  a  reason- 
able doubt,  that  the  said  A.  B.  was  a  person  in  the  habit  of 
drinking  intoxicating  liquors  at  the  time  in  question;  it  must 
appear  not  only  that  he  was  in  the  habit  of  drinking  intoxicat- 
ing liquors,  but  that  he  was,  at  the  time,  drinking  them  to 
such  an  excess  as  to  be  in  the  habit  of  getting  intoxicated. 

§  19.  Drunkenness  Defined. — The  court  instructs  the  jury 
that  a  man  is  drunk  in  a  legal  sense  when  he  is  so  far  under 
the  influence  of  intoxicating  liquor  that  his  passions  are  visibly 
excited  or  his  judgment  impaired  by  the  liquor.  State  vs- 
Pierce,  65  la.,  85;  1  Bouv.  Law  Die,  510. 


CHAPTER   LVIII. 
LARCENY. 


Sec.     1.  Larceny  defined. 

2.  Value  of  property  stolen  must  be  proved. 

3.  Name  of  the  owner,  etc.,  must  be  proved. 

4.  Special  property  sufficient. 

5.  Identity  of  the  accused  must  be  established. 

6.  Criminating  circumstances. 

7.  Person  having  possession  of  property  must  be  produced. 

8.  What  constitutes  a  taking  and  carrying  away. 

9.  Lost  property  found. 

10.  Estrays,  larceny  of. 

11.  Taking  must  be  with  felonious  intent. 

12.  Taken  under  claim  or  right  of  title. 

13.  Possession  obtained  by  fraud. 

14.  Money  stolen  umst  be  proved  to  be  genuine. 

15.  Recent  possession  of  stolen  property. 

16.  Possession  explained. 

17.  Petit  larceny — Second  offense — Illinois. 

EMBEZZLEMENT LARCENY  BY  BAILEE,  ETC. 

18.  Meaning  of  the  term. 

19.  Felonious  intent  necessary. 

20.  Taken  with  honest  intent  to  repay  defendant,  etc. 

21.  No  felonious  intent,  when. 

22.  Embezzlement  by  banker — Illinois. 

23.  Embezzlement  by  clerk,  etc. — Illinois. 

24.  Venue  of  possession. 

DIFFERENT    DEGREES  OF  LARCENY. 

25.  Rule  for  finding  value  of  property. 

26.  Form  of  verdict — Illinois. 

LARCENY. 

§  1.  Larceny  Defined. — The  court  instructs  the  jury,  tliat 
larceny  is  the  felonious  stealincr,  taking  and  carrying  away  of 
the  personal  goods,  money,  bond,  bill,  note  or  other  personal 
property  of  another. 

(739) 


740  LAECENY. 

§  2.  Value  Must  be  Proved. — That  among  tlic  material  aver- 
ments contained  in  the  indictment  necessary  to  be  proved  in 
order  to  warrant  a  conviction,  is  the  one  that  the  property 
alleged  to  have  been  stolen  had  some  value,  and  if  the  prosecu- 
tion have  failed  to  prove,  affirmatively,  some  value  to  said 
property,  then  it  is  the  duty  of  the  jury  to  acquit  the  accused. 
A  simple  statement  of  counsel  as  to  the  value  of  the  property 
will  not  suffice;  it  must  be  proved  in  some  of  the  ways  known 
to  the  law,  or  the  verdict  should  be  not  guilty.  State  vs. 
Krleger,  68  Mo.,  98. 

§  3.     Name  of  the  Person  Injured  Must  be  Proved. — The  court 

instructs  the  jur}',  that  it  is  essential  in  all  cj-iminal  prosecu- 
tions, that  the  name  of  the  jmrty  injured  should  be  proved,  as 
charged  in  the  indictment ;  and,  if  the  p">roof  shows  in  this 
case,  that  the  property  stolen  belonged  to  C.  B.  and  not  to  A. 
B.,  as  charged  in  the  indictment,  the  jui'y  must  acquit  the 
defendant. 

It  is  necessary  for  the  prosecution  to  prove  the  ownership 
of  the  property,  as  alleged  in  the  indictment;  and,  unless  the 
jury  believe,  from  the  evidence,  that  the  said  A.  B,  was  the 
owner  of  the  (Jwrse),  mentioned  in  the  indictment,  the  jury 
must  find  the  defendant  not  guilty.  McBride  vs.  Com.^  13 
Bush.  (Ky.),  337;  BoUnson  vs.  State,  5  Tex.  App.,  519. 

§  4.  Special  Property  Sufficient. — As  to  the  ownership  of  the 
property,  the  court  instructs  the  jury,  that  if  the  said  0.  D. 
had  the  ac'ual  care,  custody  and  right  to  use  the  said  {horse), 
and  was  in  the  actual  possession  at  the  time  of  the  alleged 
taking,  not  as  the  agent  or  servant  of  the  real  owner,  this 
would  be,  for  the  purposes  of  this  trial,  sufficient  evidence  of 
ownership  to  sustain  the  allegation  in  tlie  indictment,  that  he 
was  the  owner.     Crockett  vs.  State,  5  Tex,  App.,  526. 

§  5.  Identity  of  the  Accused. — If  the  jury  are  satisfied  from 
the  evidence,  beyond  a  reasonable  doubt,  that  a  larceny  was 
committed  in  manner  and  form  as  charged  in  the  indictment 
by  some  one  or  more  of  the  defendants,  and  that  this  was  done 
in  pursuance  of  a  common  purpose  entertained  by  all  for  the 
benefit  of  all,  and  according  to  a  plan  or  scheme  contrived  or 


LAKCENT.  741 

agreed  upon  by  all  of  the  defendants,  then  the  Jury  will  be 
warranted  in  finding  them  all  guilty,  although  you  may  be 
in  doubt  as  to  the  identity  of  the  particular  defendant  who 
actually  took  and  carried  away  the  property  in  question. 
Neville  vs.  State,  60  Ind.,  308. 

§  6.  Criminating  Circumstances. — If  the  jury  believe,  from 
the  evidence,  beyond  a  reasonable  doubt,  that  the  prosecuting 
witness,  A.  B.,  had  money  in  his  possession,  of  the  kind  and 
character  mentioned  in  the  indictment,  and  that  the  same  was 
stolen  from  him,  in  manner  and  form  as  charged  in  the  indict- 
ment, and  that  the  defendant  had  an  opportunity  to  steal  the 
same,  at  and  about  the  time  it  is  alleged  to  have  been  stolen, 
and  that  shortly  thereafter  the  defendant  was  seen  to  be  spend- 
ing the  same  kind  of  money  lavishly,  and  for  articles  of  or- 
nament and  luxury,  apparently  unsuited  to  his  circumstances 
and  condition  in  life,  then  tliese  are  circumstances  tending  to 
show  the  guilt  of  the  defendant,  and  should  be  considered  by 
the  jury  in  connection  with  all  the  other  evidence  in  the  case, 
in  determining  the  guilt  or  innocence  of  the  defendant,  unless 
he  has  given  a  satisfactory  account  of  how  he  obtained  the 
money  which  he  was  spending. 

§  7.     Person  Having  Possession  of  Pi'operty  mnst  be  Produced. — 

It  is  a  rule  of  law,  that  when  property  is,  by  the  owner,  placed 
in  the  care  and  custody  and  under  the  control  of  another,  and 
such  property  is  alleged  to  have  been  stolen  from  the  posses- 
sion of  such  other  ]:»erson,  then,  if  it  is  in  tiie  power  of  tlie 
lirosecntion  to  produce  the  person,  so  having  such  possession, 
as  a  witness,  he  must  be  produced,  in  order  to  show  that  the 
property  was  not  taken  with  his  consent;  and,  in  such  case,  the 
evidence  of  such  ])erson  cannot  be  supplied  by  other  proof, 
nor  can  the  accused  be  convicted  without  it,  2  Kuss.  on  Grim., 
122;  State  vs.  Osborne,  28  Iowa,  9. 

§  8.  What  Constitutes  Taking  and  Carrying  Away. — To  con- 
stitute larceny  there  must  be  a  felonious  taking  and  carrying 
away  of  the  property  mentioned  in  the  indictment  or  some 
part  of  it  but  it  is  not  necessary  that  the  prt)perty  should  be 
carried  or  removed   to  any  particular  distance  from  the  jilace 


742  LAKCENY. 

wliere  it  is  taken,  and  in  th's  case,  if  the  jury  believe,  from  the 
evidence,  beyond  a  reasonal)1e  doubt,  that  the  defendant  took 
the  property  mentioned  in  the  indictment  or  any  part  of  it 
from  the  place  where  it  Mas  left  by  the  owner  and  concealed 
the  same  (in  the  same  room  or  building)  with  intent  to  steal 
the  property  so  taken,  this  would  be  a  sufficient  taking  an'l 
carrying  away  of  the  property  to  constitute  the  crime  of  lar- 
ceny. Nutzel  vs.  State^  60  Ga.,  264;  State  vs.  Green^  81  E". 
a,  560. 

§  9.  Lost  Goods  Found. — The  law  is  that  if  a  man  finds  goods 
that  are  actually  lost  or  are  reasonably  supposed  by  him  to  have 
been  lost,  and  he  appropriates  them  to  his  own  use  with  intent 
to  take  entire  dominion  over  them  as  his  own,  this  is  not  lar- 
ceny, provided  he  believes,  and  has  good  reason  to  believe,  that 
the  owner  cannot  be  found.  Baker  vs.  The  State,  29  Ohio 
St.,  184;  Wharton  Grim.  Law,  650 ;  1  Bishop  Grim.  Law,  §  419. 

The  finder  of  lost  property  is  not  bonnd  to  make  any  search 
for  the  owner.  He  is  under  no  legal  obligation  to  advertise 
it  in  a  newspaper  or  to  search  the  papers  to  see  if  the  loss  has 
been  advertised.  And,  although  the  jury  may  believe,  from 
the  evidence,  that  the  said  A.  B.  lost  the  property  mentioned 
in  the  indictment,  and  that  the  defendant  found  the  same,  and 
afterwards  converted  it  to  his  own  use,  still,  if  you  further 
believe,  from  the  evidence,  that  at  the  time  he  so  found  it 
there  was  nothing  in  the  nature  of  the  property,  or  in  the  cir- 
cumstances under  which  it  was  found,  to  indicate  to  the  de- 
fendant who  the  owner  was,  or  where  he  could  be  ascertained, 
and  that  the  defendant,  at  the  time  he  found  the  property, 
did  not  intend  to  steal  the  same,  then  you  should  find  him  not 
guilty,  although  you  may  believe  that  he  afterwards  purposely 
concealed  the  fact  that  he  liad  found  the  property  and  con- 
verted it  to  his  own  use.     Brooks  vs.  State,  35  Ohio  St.,  46. 

It  is  not  necessar}^,  to  the  conviction  of  the  defendant,  that 
he  should  have  known,  or  have  had  reason  to  believe  he 
knew,  the  particular  person  who  owned  the  property  at  the 
time  of  the  alleged  finding;  or  that  he  should  have  had  the 
means  of  identifying  the  owner  immediately,  at  that  time.  If 
tlie  jury  believe,  from  the  evidence,  beyond  a  reasonable  doubt, 
that  the  prosecuting  witness  A.  B.  was  the  owner  of  the  prop- 


LAECENT.  743 

erty  described  in  tlie  indictment,  and  that  the  defendant  found 
the  same,  and  that  at  the  time  of  the  linding  he  had  reason- 
able gronnd  to  believe,  from  the  nature  of  the  property,  or 
from  the  circumstance  under  which  he  found  it,  that  if  he 
did  not  conceal  the  fact  that  he  had  found  it,  but  dealt  hon- 
estly with  it,  the  owner  would  appear  or  be  ascertained,  then, 
if  he  purposely  concealed  the  fact  that  he  had  found  the  prop- 
erty, he  would  be  guilty  of  larceny ;  provided,  the  jury  fur- 
ther believe,  from  the  evidence,  that  at  the  time  the  defend- 
ant first  took  the  property  into  his  possession,  he  intended  to 
convert  it  to  his  own  use.     BrooJcs  vs.  State,  35  Ohio  St.,  46. 

§  10.  Larceny  of  Estrays. — If  the  jury  find,  from  the  evi- 
dence, be3^ond  a  reasonable  doubt,  that  the  animal  mentioned 
in  the  indictment  was  an  estray,  and  that  the  defendant  took 
it  into  his  possession,  or  found  it  running  witli  his  stock  and 
took  care  of  and  fed  it  with  his  own  stock,  and  tliat  wlien  he 
first  got  it  into  his  possession  he  did  not  intend  to  steal  it  or 
feloniously  convert  it  to  his  own  use,  then  he  would  not  be 
guilty  of  the  crime  of  larceny,  although  you  may  find,  from 
the  evidence,  beyond  a  reasonable  doubt,  that  he  afterwards 
killed  the  animal  and  converted  it  to  his  own  use,  witli  intent 
to  deprive  the  owner  of  it.  Starch  vs.  State,  63  Ind.,  283 ; 
Grwjs  vs.  State,  58  Ala.,  425. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  took  the  animal  mentioned  in  the 
indictment  into  his  possession  while  the  same  was  running  in 
the  public  highway,  and  that  at  the  time  he  so  took  the  ani- 
mal he  knew  it  was  not  his  own,  and  that  he  intended  then  to 
steal  and  convert  it  to  his  own  use  and  to  deprive  the  owner 
of  his  property,  whoever  he  might  be,  and  that  in  pursuance 
of  such  intention  he  afterwards  killed  the  animal  and  con- 
verted it  to  his  own  use,  this  would  amount  to  the  crime  of 
larcenj' ;  provided,  you  find  all  the  other  allegations  of  the 
indictment  proved,  by  the  evidence,  beyond  a  reasonable 
doubt.  Starch  vs.  State,  63  Ind.,  283;  State  vs.  JIarii?i,  28 
Mo.,  530;   Com.  vs.  Masoti,  105  Mass.,  163. 

§  11.  Taking  must  be  with  Felonious  Intent. — The  court  in- 
structs the  jury,  that  every  unlawful  taking  of  the  goods  and 


744  LARCENY. 

chattels  of  another,  without  his  knowledge  or  consent,  does 
not  amount  to  a  larceny;  to  make  it  such,  the  taking  must  be 
such,  and  accompanied  by  such  circumstances,  as  show  a  felo- 
nious intent,  that  is,  an  intent  to  steal  the  property.  Mason 
vs.  State,  32  Ark.,  23S;  Hart  vs.  State,  57  Ind.,  102;  Com.  vs. 
Hurd,  123  Mass.,  438. 

Even  though  the  jury  may  believe,  from  the  evidence,  that 
the  money  in  question  was  taken  from  the  said  A.  B.  conti  ary 
to  his  will  and  without  his  knowledge,  still,  if  the  evidence 
shows  that  the  defendant,  when  he  obtained  the  money,  did 
not  intend  to  steal  it,  but  took  it  only  for  safe  keeping,  intend- 
ing to  return  the  same  to  the  owner,  then  the  jury  should 
acquit  the  defendant. 

The  court  instructs  the  jury,  that  every  unlawful  taking 
and  carrying  away  of  the  personal  goods  of  another,  will  not 
amount  to  larceny;  to  constitute  larceny,  a  felonious  intent 
must  be  shown  to  have  accompanied  the  original  taking;  that 
is,  the  goods  nmst  have  been  taken  with  an  intent  to  steal  the 
same.  State  \q.  Wood, -^(j  la.,  116;  Ilum^hrey  v^.  State,  %Z 
Ind.,  223. 

§  12.  Taken  under  Claim  of  Right  or  Title. — The  jury  are 
further  instructed,  that  although  they  may  believe,  from  the 
evidence,  beyond  a  reasonable  doubt,  that  the  defendant  took 
and  carried  away  the  property  in  question,  as  charged  in  the 
indictment,  still,  if  they  further  believe,  from  the  evidence, 
that  the  defendant  took  the  property  under  a  claim  of  title 
honestly  entertained,  then  he  is  not  guilty  of  larceny;  and,  in 
such  case,  it  makes  no  difference  whether  he  did,  in  fact,  have 
any  legal  right  to  the  possession  of  the  property  or  not. 
State  vs.  Bond,  8  Clarke  (la.),  540;  2  Whar.  on  Crim.  Law, 
§  1770. 

The  intent  being  necessary  to  complete  the  crime  of  lar- 
ceny, if  a  person,  under  the  honest  impression  that  he  has  a 
right  to  the  property,  said  to  have  been  stolen,  takes  it  into  his 
possession  under  such  claim  of  right,  this  would  not  be  lar- 
ceny; and,  in  this  case,  if  the  prosecution  have  failed  to  prove, 
beyond  a  reasonable  doubt,  that  the  property  in  question  was 
taken  by  the  defendant,  knowing,  at  the  time,  that  it  was  the 
property  of  another,  and  with   the  intention    of   feloniously 


LAKCENY.  745 

converting  the  same  to  his  own  use,  then  it  is  your  duty  to 
acquit  the  defendant. 

The  court  further  instructs  the  jury,  that  where  property  is 
taken  under  a  claim  of  right,  and  there  be  any  fair  ])retense 
of  right  to  the  property,  and  the  jury  beheve,  from  the  evi- 
dence, tliat  such  claim  is  made  in  good  faith,  then  it  is  the 
duty  of  the  jury  to  find  the  defendant  not  guilt}'. 

Although  you  may  believe,  from  the  evidence,  that  the 
defendant  would  be  liable  in  an  action  of  tresjoass  fortlievahic 
of  the  property  in  question,  still,  unless  the  prosecution  have 
proved,  beyond  a  reasonable  doubt,  that  the  defendant  feluni- 
ously  stole  the  same,  then  you  must  acquit  the  defendant. 

§  13.  Possession  Obtained  by  Fraud  with  Intent,  etc. — If  the 
jury  believe,  bej'ond  a  reasonable  doubt,  that  the  defendant, 
at  or  about  the  time  stated  in  the  indictment  (at  the  saloon  of 
E.  M.),  in  this  county,  by  any  fraudulent  means  or  representa- 
tion, induced  the  said  A.  B.  to  take  out  his  money,  and  that,  in 
consequence  thereof,  the  said  A.  B.  did  take  out  his  money, 
and  that  in  pursuance  of  such  intent,  the  said  defendant  did 
then  and  there  feloniously  steal,  take  and  carry  away  said 
money,  in  manner  and  form  as  charged  in  the  indictment,  then 
the  jury  should  Und  the  said  defendant  guilty  of  larceny. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  obtained  the  possession  of  the  money, 
described  in  the  indictment,  fraudulently  and  with  an  intent 
then  and  there  to  steal  the  same,  and  of  feloniously  convert- 
ing the  same  to  his  own  use,  in  manner  and  form  as  charged 
in  the  indictment,  then  this  in  law  would  amount  to  a  larceny, 
notwithstanding  the  said  A.  B.  knowingly  and  intentionally 
parted  with  the  possession  of  the  money.  3  Greenl.  on  Evi., 
§  160;  2Whar.  on  Grim.  Law,  §  1787. 

§  14.  Money  Must  be  Proved  to  be  Genuine. — The  jury  are  in- 
structed, that  to  warrant  a  conviction  under  this  indictment, 
the  jury  must  believe,  from  the  evidence,  that  one  or  more  of 
the  treasury  notes,  bank  bills  or  other  money,  alleged  to  have 
been  taken  by  the  defendant,  was  a  genuine  bill  or  note  ;  and  if 
the  jury  find  that  the  people  have  failed  to  produce  any  proof 
of  the  genuineness  of  such  treasury  note,  bank  bill  or  other 


746  LARCENY. 

m  ->ney,  and  that  there  is  no  such  evidence  before  the  jury, 
then  the  jury  should  find  the  defendant  not  guilty.  Collins 
vs.  The  Feoj)le,  39  111.,  233 ;  1  Starkie  on  Evidence,  829,  note. 

§  15.  Possession  of  Stolen  Property. — The  court  instructs  the 
jury,  that  the  possession  of  stolen  property  recently  after  the 
theft  by  the  person  charged,  if  unexplained,  is  a  circumstance 
tending  to  prove  his  guilt;  and  if  the  jury  believe,  from  the 
evidence,  that  the  defendant  was  found  with  the  stolen  prop- 
erty in  his  possession,  then,  in  determining  the  w^eight  to  be 
attached  to  that  circumstance,  as  tending  to  prove  guilt,  the 
jury  shall  consider  all  the  circumstances  attending  such  pos- 
session— the  proximity  of  the  place  where  found  to  the  place 
of  the  larceny;  the  lapse  of  time  since  the  property  was 
taken;  whether  the  property  was  concealed;  whether  the 
party  admitted  or  denied  the  possession;  the  demeanor  and 
character  of  the  accused;  whether  other  persons  had  access 
to  the  place  where  the  property  was  found.  All  these  cir- 
cumstances, so  far  as  they  have  been  proved,  are  proper  to  be 
taken  into  account  by  the  jury  in  determining  how  far  the 
possession  of  the  proj^erty  by  the  accused,  if  it  has  been 
proved,  tends  to  show  his  guilt.  3  Greenl.  Evi.,  §  32;  Co7ik- 
wriglit  vs.  The  People^  35  111.,  2u4;  State  vs.  Hodge,  60 
K  H.,  510. 

The  court  instructs  the  jury,  that  the  possession  of  recently 
stolen  property  is  usually  regarded,  in  law,  as  a  criminating 
circumstance,  strongly  tending  to  show  that  the  possessor  stole 
the  property,  unless  the  facts  and  circumstances  surrounding 
or  connected  with  such  possession,  or  other  evidence,  explains 
or  shows  such  possession  might  have  been  acquired  honestly. 
Possession  of  stolen  property,  immediately  after  the  theft,  is 
sufficient  to  warrant  a  conviction,  unless  attending  circum- 
stances, or  other  evidence,  so  far  overcomes  the  presumption 
thus  raised  as  to  create  a  reasonable  doubt  of  the  prisoner's 
guilt,  when  an  acquittal  should  follow.  SaJdinger  vs.  The 
People,  102  111.,  241 ;  Fowle  vs.  State,  47  Wis.,  545  ;  State  vs. 
Pennyman,  68  la.,  216;  Johnson  vs.  Miller,  29  N.  W. 
Kep.,  743. 

In  this  case,  if  the  jury  believe,  from  the  evidence,  beyond 
a  reasonable  doubt,  that  the  property  described  in  the  indict- 


LARCENY.  747 

ment  was  stolen,  and  that  the  defendant  was  found  in  the 
possession  of  the  property  soon  after  it  was  stolen,  then  snch 
possessi  n  is,  in  law,  a  strong;  criminating  circumstance,  tend- 
ing to  show  the  guilt  of  the  defendant,  nnless  the  evidence, 
and  the  facts  and  circumstances  proved,  show  that  he  may 
have  come  honestly  in  possession  of  the  same.  Smith  vs. 
State,  58  Ind.,  3i0;   Wathins  vs.  State,  2  Tex.  App.,  73. 

§  16.  Possession  Explained. — The  court  instructs  the  jnry, 
that  while  possession  of  stolen  property  recently  after  the 
theft,  if  unexplained,  is  a  circumstance  tending  to  show  the 
guilt  of  the  possessor,  still,  in  this  case,  if  the  jury  believe 
from  the  evidence,  tliat  the  defendant  bought  the  property  in 
question  at,  etc.,  openly  and  publicly,  and  unconnected  with 
any  suspicious  circumstances  of  guilt,  this  is  a  satisfactory 
account  of  his  possession  of  the  property,  and  removes  every 
presumption  of  guilt  growing  out  of  such  possession.  Jones 
vs.  The  People,  12  III.,  259. 

§  17.     Petit    Larceny,  Second    Offense — Illinois    Statute. — The 

cou:t  instructs  the  jury,  as  a  matter  of  law,  that  in  case  of  a 
second  conviction  of  the  offense  of  petty  larceny,  by  any  per- 
son over  the  age  of  eighteen  years,  the  punishment  shall  be 
by  imprisonment  in  the  penitentiar}^,  for  a  term  not  exceeding 
three  years;  and  on  the  trial  under  an  indictment  for  petty 
larceny,  a  duly  certified  copy  of  the  record  of  a  former  con- 
viction and  judgment  of  any  court  of  record  in  this  state  for 
a  like  offense  against  the  party  indicted,  shall  he  j^rima  facie 
evidence  of  such  former  conviction,  and  may  be  used  in  evi- 
dence against  such  party ;  provided,  that  such  former  con- 
viction and  judgment  shall  be  set  forth  in  apt  words  in  the 
indictment. 

LARCENY  AS  BAILEE EMBEZZLEMENT. 

§  17.  Meaning  of  the  Term. — The  court  instructs  the  jury, 
that  the  meaning  of  the  word  embezzlement  is  the  fraudulently 
removing  or  secreting  jiersonal  pro [lerty,  with  which  a  party 
has  been  intrusted,  for  the  purpose  of  applying  it  to  his  own 
use.     There  can  be  no  embezzlement,  within  tlie  legal   mean- 


748  LAKCENY. 

ing  of  the  word,  unless  the  party,  when  he  takes  the  proj^erty 
or  money,  does  it  secretly,  with  an  intent  to  defraud  the 
owner.     People  vs.  Hurst,  28  N.  "W.  Kcp.,  838. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  if  any 
bailee  of  any  bank  bill,  note,  money  or  other  proj^erty,  shall 
convert  the  same  to  his  own  use,  with  intent  to  steal  the 
same,  or  secretes  the  same  with  intent  so  to  do,  he  shall  be 
deemed  guilty  of  larceny.    (Illinois.) 

The  court  instnict  the  jury,  as  a  matter  of  law,  that  who- 
ever embezzles  or  fraudulently  converts  to  his  own  use,  or 
secretes,  with  intent  to  embezzle  or  fraudulently  convert  to  his 
own  use,  money,  goods  or  property  delivered  to  him,  which 
may  be  the  subject  of  larceny,  or  any  part  thereof,  shall  be 
deemed  guilty  of  larceny.     (Illinois.) 

§  18.  Felonious  Intent  Necessary. — That  to  constitute  the 
crime  of  larceny  a  felonious  intention,  that  is  an  intention  to 
steal,  must  always  exist.  And,  under  our  statute,  making  the 
conversion  of  property  to  his  own  use  by  a  bailee  larceny,  the 
crime  is  not  made  out  by  merely  showing  a  conversion  of  the 
property  to  his  own  use  by  the  bailee,  but  it  must  further  ap- 
pear that  such  conversion  was  with  an  intent  to  steal  the  same. 
The  jury  are  instructed,  that  the  taking  or  conversion  of  per- 
sonal property  which  renders  a  person  guilty  of  simple  lar- 
ceny, or  of  embezzlement,  is  a  feloniously  taking  or  conver- 
sion, and  before  you  can  convict  the  defendant  in  this  case^ 
you  must  be  satisfied,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  property  mentioned  in  the  indictment,  or  some 
part  of  it,  was  converted  to  his  own  use  by  the  defendant, 
with  an  intention,  at  the  time,  to  steal  the  same.  Phelps  vs. 
The  People,  55  111.,  334;  People  vs.  Ilushand,  36  Mich.,  306; 
ma  vs.  State,  57  Wis.,  377;  People  vs.  Gallancl,  55  Mich.,  628. 

§  19.  Taken  with  Intent  to  Repay  Himself. — If  tlie  jury  be- 
lieve, from  the  evidence,  that  the  defendant  did  take  and 
convert  to  his  own  use  money  belonging  to  the  said  A.  B., 
and  which  came  into  his  hands  as  the  clerk  of  the  said  A.  B., 
still,  if  the  jury  further  believe,  from  the  evidence,  that  when 
defendant  so  took  said  money,  he  honestly  and  in  good  faith 
intended  and  expected  to  replace  said  money,  and  make  the 


LARCENY.  749 

same  good  to  tlie  said  A.  B.,  then  tlic  jury  should  uotfiud  the 
defendant  guilty  under  this  indictment. 

§  20.  No  Felonious  Intent,  Wlien. — If  the  Jury  believe,  from 
the  evidence,  that  the  defendant,  as  clerk  or  salesman  of  the  said 
A.  B.,  received  moneys  belonging  to  him,  and  honestly  and 
fairly  charged  liimself  with  the  same  on  the  account  books 
kept  for  that  purpose,  and  afterwards  used  the  money  for  his 
own  benefit,  without  the  knowledge  of  the  said  A.  B.,  never 
attempting  to  conceal  the  fact,  but  acknowledged  the  same 
when  spoken  to  about  it,  and  promised  to  repay  it  as  soon  as 
lie  was  able,  these  facts  are  all  proper  to  be  taken  into  account 
by  the  jury,  with  all  the  other  evidence  in  the  case,  in  deter- 
mining the  question  whether  the  defendant  used  the  money 
with  any  felonious  or  fraudulent  intent;  and  if,  upon  a  consider- 
ation of  all  the  facts  and  circumstances  proved,  the  jury  have 
any  reasonable  doubt  of  such  felonious  and  fraudulent  intent, 
they  should  find  the  defendant  not  guilty.  2  Bishop  on  Grim. 
Law,  §  360. 

§  21.  Embezzlement  by  Banker — Illinois  Statute. — If  you  be- 
lieve, beyond  a  reasonable  doubt,  from  the  evidence,  that  the 
defendant  was  engaged  in  the  business  of  banking,  and  in  such 
business  received  on  deposit  with  intent  to  defraud,  from  one 

S.  D.,  the  sum  of   $ ,  or  any  other  sum,  that  at  the  time 

such  deposit  was  made  said  D.  was  not  indebted  to  the  de- 
fendant, that  at  the  time  of  receiving  said  deposit  the  defend- 
ant was  insolvent,  and  knew  himself  to  be  so,  and  that  said 
deposit  or  any  portion  of  it  was  lost  to  said  D.,  then  you 
should  find  the  defendant  guilty.  Miwphy  vs.  People^  19  111. 
App.,  125. 

A  depositor  of  money  in  a  bank  is  a  person  who  places  his 
money  therein  for  safe  keeping.     Ihid. 

It  is  not  necessary  tliat  the  prosecution  should  prove,  by 
direct  and  positive  evidence,  that  the  defendant  was  insolvent 

on  the day  of,  etc.,  or  that  he  knew  he  was  insolvent,  but  it 

is  sufficient,  if  you  are  satisfied  beyond  a  reasonable  doubt,  from 
all  the  circumstances  in  evidence  in  the  case,  that  he  was  in- 
solvent at  that  time,  and  took  and  converted  the  deposit  with 
fraudulent  intent.     Ibid. 


750  LARCENY. 

It  is  your  province,  as  jurors,  to  say  under  your  oaths,  from 
tlie  evidence,  whether  or  not  the  defendant  was  insolvent  at 
the  time  he  received  the  dejjosit.     Ihid. 

§  22.  Embezzlement  by  Clerk. — The  court  instructs  the  jury, 
as  a  matter  of  law,  that  if  any  officer,  ao;ent,  clerk  or  servant, 
of  any  incorporated  company,  or  if  a  clerk,  agent,  servant  or 
apprentice  of  any  person  or  co-partnership,  or  society,  em- 
bezzles or  fraudulently  converts  to  his  own  use,  or  takes  and 
secretes  with  intent  so  to  do,  without  the  consent  of  his  com- 
pany, emplo^-er  or  master,  any  property  of  such  com]3any, 
employer,  master,  or  another,  which  has  come  to  his  posses- 
sion, or  is  under  his  care  by  virtue  of  such  office  or  employ- 
ment, he  shall  be  deemed  guilty  of  larceny. 

§  23.  Venue  of  Conversion. — If  the  jury  believe,  from  the 
evidence,  beyond  a  reasonable  doubt,  that  the  defendant  had 
in  his  possession,  in  thiscoimty,  money  which  belonged  to  the 
said  A.,  and  that  while  he  so  held  it,  in  this  county,  he  formed 
the  purpose  and  intent  to  convert  the  same  to  his  own  use, 
with  intent  to  steal  the  same,  and  that  he  did  afterwards,  in 
pursuance  of  such  intent,  convert  the  same  to  his  own  use, 
then  he  would  be  guilty  of  larceny  as  bailee,  no  matter 
whether  he  actually  converted  the  same  to  his  own  use  in  this 
county  or  in  the  county  of  S. 

Although  the  jury  may  believe,  from  the  evidence,  beyond 
a  reasonable  doubt,  that  the  defendant  bad  in  his  possession,  in 
this  county,  money  of  the  said  A.,  and  afterwards  converted  t'le 
same  to  his  own  use,  still,  if  you  further  believe,  from  the  evi- 
dence, that  he  carried  said  money  into  the  county  of  S.,  and 
then  for  the  first  time  formed  a  purpose  in  his  own  mind  of 
con\erting  the  same  to  his  own  use,  and  did  afterwards  con- 
vert the  same,  etc.,  in  the  said  county  of  S.,  then  the  jury 
should  find  the  defendant  not  guilty.  Camj>bell  vs.  State,  35 
Ohio,  70. 

§  2i.  Rule  for  Determining  tlie  Valne  of  Property. — The  court 
further  instructs  the  jury,  as  a  matter  of  law,  if  they  find  the 
defendant  guilty  of  the  larceny,  as  charged  in  the  indictment, 
it  will  then  be  their  duty  to  find,  from  the  evidence  in  the 


LAKCENT.  751 

case,  the  value  of  the  ]-)roperty  stolen,  and  to  state  such  value, 
as  found  in  their  verdict;  and  if,  after  a  careful  consideration 
of  all  the  evidence  in  the  case,  the  jury  luive  a  reasonable 
doubt,  arisinc^  from  all  the  evidence,  as  to  the  value  of  such 
property  being  greater  than  twenty  dollars  (Iowa),  it  will  be 
their  duty,  under  the  law,  to  find  the  value  to  be  twenty  dol- 
lars, or  less,  as  shown  by  the  evidence.  State  vs.  IFoocZ,  46  la., 
116;  State  vs.  McCarty,  34  N.  W.  Eep.,  606. 

§  25.  Larceny — Form  of  Verdict — Illinois. — The  court  in- 
structs the  jury,  as  a  matter  of  law,  that  if  they  find  the  de- 
fendant not  guilty  they  will  so  state  in  their  verdict;  and  that, 
if  they  find  the  defendant  guilty,  they  will  so  state  in  their 
verdict,  and,  if  guilty,  they  will  also  state  in  their  verdict, 
the  value  of  the  money  or  property  stolen;  if  they  find  such 
value  to  be  above  fifteen  dollars  they  will  fix  in  their  verdict 
his  term  of  imorisonment,  which  may  not  be  less  than  one 
nor  more  than  ten  years  in  the  penitentiary.  If  they  find  the 
value  of  the  money  or  property  to  be  fifteen  dollars,  or  less, 
they  will  so  state,  leaving  the  term  of  imprisonment  in  the 
jail  or  workhouse  to  be  fixed  by  the  court. 


CHAPTER  LIX. 

MALICIOUS  MISCHIEF. 


Sec.     1.  The  offense. 

2.  Malice,  how  proved. 

3.  Ownership,  how  proved. 

4.  Ownership  must  be  proved  as  alleged. 

5.  Injury  must  be  proved  as  alleged. 

6.  Malice  must  be  proved. 

7.  Malice  against  the  owner  must  be  proved. 

§  1.  Malicious  Mischief. — The  jury  are  instructed,  tliat  in 
this  case  the  defendant  is  charged  with  having  willfully  and 
maliciously,  etc.;  and  if  the  jury  believe,  from  the  evidence, 
beyond  a  reasonable  doubt,  that  the  defendant  committed  tlie 
crime,  in  manner  and  form  as  charged  in  the  indictment, 
within  {eighteen  months)  before  the  finding  of  the  indictment 
in  this  case,  then  the  jury  should  find  the  defendant  guilty. 

§  2.  Malice,  How  Proved. — If  the  jury  believe,  from  the 
evidence,  bej'ond  a  reasonable  doubt,  that  the  defendant 
intlicted  the  injury  upon  the  property  in  question,  in  manner 
and  form  as  charged  in  the  indictment,  willfully  and  wan- 
tonly, and  without  any  reasonable  excuse  being  given  there- 
for, then  the  law  will  imply  malice  against  the  owner  of  the 
property.     2  Whar.  Crim.  Law,  7  Ed.,  20JS. 

§  3.  Ownership,  How  Proved. — When  personal  property 
left  in  the  care  and  custody,  and  under  the  control  of  a  person 
not  the  absolute  owner,  but  having  a  legal  right  to  such  pos- 
session, not  as  agent  or  servant  of  such  owner,  is  injured,  the 
person  having  such  control  and  possession  has  such  an  interest 
in  the  property  as  will  authorize  the  property  to  be  laid  in  tlie 
indictment,  for  maliciously  injuring  the  same,  as  the  property 
of  the  person  so  having  it  in  charere.  2  Whar.  Crim,  Law,  2 
Ed.,  1818;  Peo;ple  vs.  Rorr,  7  Barb.,  9. 

(752) 


MALICIOUS    MISCHIEF.  753 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  property  in  question  was,  at  the  time  of  the 
alleged  injury,  either  the  absolute  projierty  of  the  said  A.  B., 
or  that  it  was  left  in  liis  possession  by  the  owner,  with  the 
right  to  use  and  control  the  same,  and  with  an  absolute  right 
to  the  possession  thereof  at  the  time  of  the  alleged  injury, 
then  the  ownership  of  the  property  is  properly  laid  in  the 
indictment,  as  the  property  of  the  said  A.  B. 

§  4.  Ownership  Must  be  Proved  as  Alleged. — That  the  prop- 
erty in  the  animal  injured  is  laid  in  the  said  A.  B.,  and  it  is 
material  for  the  prosecution  to  prove  that  he  had  a  general  or 
special  property  in  the  animal ;  and  unless  this  has  been  proved 
to  the  exclusion  of  every  reasonable  doubt,  the  defendant  is 
entitled  to  an  acquittal. 

§  5.  Injury  Must  be  Proved  as  Alleged. — If  the  jury  believe, 
from  the  evidence,  that  the  animal  described  in  the  indict- 
ment was  injured  by  some  one,  in  some  manner,  this  will  not 
authorize  the  jury  to  find  the  defendant  guilty,  unless  they  are 
satisfied,  beyond  a  reasonable  doubt,  that  the  injury  was  in- 
flicted by  the  defendant,  and  in  the  manner  desci'ibed  in  the 
indictment. 

If  the  jury  believe,  from  the  evidence,  that  the  animal 
might  reasonably  have  been  injured  by  some  other  person,  or 
in  some  othei'  manner  than  that  charged  in  the  indictment, 
this  is  sufficient  to  raise  a  reasonable  doubt,  and  the  defendant 
should  be  acquitted. 

§  6.  Malice  Must  be  Proved. — This  being  an  indictment  for 
malicious  mischief,  malice  is  a  necessary  element  to  be  proved, 
or  made  to  appear  from  the  facts  or  circumstances  proved. 
Without  this  ingredient  the  crime  is  not  complete,  and  the 
act  complained  of  would  be  only  a  trespass,  for  which  tlie 
party  injured  would  be  compelled  to  resort  to  a  civil  action 
for  redress.     Gaskill  vs.  State^  56  Ind.,  550. 

§  7.  Malice  against  the  Owner  Must  be  Shown, — That  the 
malice  necessary  to  constitute  this  offense  must  exist  against 
the  owner  of  the  property,  or  against  some  one  having  a  gen- 

48 


754  MALiciors  mischief. 

era!  or  special  interest  therein.  Malice  against  the  animal,  if 
proved,  will  not  warrant  a  conviction.  IState  vs.  Enslow^  10 
la.,  115;  2  Bishop  Crim.  Law,  §  964;  U.  S.  vs.  Gideon^  1 
Minn.,  292.     Contra:  Moshj  vs.  State,  28  Ga.,  190. 

In  order  to  convict  the  defendant  upon  this  indictment,  the 
prosecution  must  prove,  to  the  satisfaction  of  the  jury,  that  the 
defendant  knew  or  supposed  the  animal  in  question  belonged 
to  the  said  A.  B.,  and  so  knowing  or  supposing,  willfully  and 
deliberately  injured  the  same,  through  malice  towards  the  said 
A.  B.;  and  unless  this  has  been  done  it  is  your  duty  to  acquit 
the  defendant.     JS'ewton  vs.  State,  3  Tex.  App.,  245, 

If  the  jury  believe,  from  the  evidence,  that  the  defendant 
shot  and  injured  the  animal  in  question,  in  manner  and  form 
as  charged  in  the  indictment,  recklessly  and  wantonly,  and 
without  any  provocation,  then  the  law  will  presume  malice 
against  the  owner,  and  the  jury  should  find  defendant  guilty. 
MoshyyQ.  State,  28  Ga.,  190. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  injured  the  (property  in  question) 
that  the  injury  was  a  serious  one  and  was  done  willfully  and 
deliberately  for  the  purpose  of  gain  or  benefit  to  himself,  then 
the  jury  may  find  the  defendant  guilty,  in  manner  and  form  as 
charged  in  the  indictment,  although  the  evidence  does  not 
show  that  the  defendant  had  any  personal  malice  towards  the 
owner  of  the  property.     Brown  vs.  State^  26  Ohio  St.,  176. 


CHAPTER  LX. 

PERJURY. 


Sec.     1.  The  offense — How  proved,  etc. 

2.  Proof  to  authorize  conviction 

3.  Materiality,  when  sufficient. 

4.  One  witness,  when  sufficient. 

6.  Authority  of  officer  administering  the  oath  must  be  shown. 

6.  The  testimony  alleged  must  be  proved 

7.  No  reasonable  grounds  of  belief. 

8.  Testimony  must  be  knowingly  and  willfully  false, 

9.  Official  character  of  the  justice  must  be  proved. 

10.  That  the  accused  was  sworn  must  be  proved. 

11.  More  than  one  witness  required. 

12.  Every  material  allegation  must  be  proved. 

13.  Materiality  must  be  shown. 

14.  The  test  of  materiality. 

PEKJUEY. 

Note. — Perjury  assigned  upon  testimony  given  by  defendant  on  a  trial 
before  a  justice  of  the  peace,  in  swearing  that  he  "  bought  the  horse  of  A. 
B.,  and  paid  ^100  cash  for  it  at  the  time." 

§  1.  Charge  must  be  Proved  in  Manner  and  Form,  etc. — If  the 
jury  believe,  from  tlie  evidence,  beyond  a  reasonable  doubt, 
that  the  defendant  knowingly  and  willfully  testified  falsely, 
in  manner  and  form  as  charged  in  the  indictment  in  this  case^ 
then  the  jury  should  find  the  defendant  guilty. 

§  2.  Proof  to  Anthorize  Conviction. — If  the  jury  believe,  from 
the  evidence,  beyond  a  reasonable  doubt,  that  some  time  ou 
or  about,  etc.,  upon  the  trial  of  an  action  of  {replevin),  in 

which  the  value  of  the  property  did  not  exceed  % ,  and 

then  pending  before  one  R.  L.,  an  acting  justice  of  the  peace 
of  this  county,  the  said  defendant  was  sworn  as  a  witness,  by 
said  justice,  and  then  testified  that  he  bought  the  {horse)  of  A. 
B.,  and  paid  $100  in  cash  for  it  at  the  time,  in  manner  and 
form  as  charged  in  the  indictment,  and  if  the  jury  further  be- 

(755) 


756  PEEJUKY. 

lieve,  from  the  evidence,  beyond  a  reasonable  doubt,  that 
M'hether  he  liad  so  bought  tlie  {hoi'se)  of  A.  B.,  and  paid  $100 
in  cash  for  it  at  the  time,  uas  a  material  question  on  such  trial, 
and  that  such  testimony  was  imtrue  and  false,  and  known  to 
the  defendant  to  be  untrue  and  false  at  the  time  he  gave  such 
testimony,  tlien  the  jury  should  find  the  defendant  guilty. 

§  3.  Materiality  Sufficient,  Wlien. — The  jury  are  instructed, 
as  a  matter  of  law,  that  to  render  testimony  material  in  a  case 
it  is  not  necessary  that  it  should  bear  directly  ui)on  the  main 
issue  in  the  case ;  it  is  sufheient  if  it  is  material  to  any  ques- 
tion arising  upon  the  trial,  and  such  as,  if  it  were  true,  might 
properly  influence  the  justice  or  the  jury  before  whom  the 
case  is  being  tried  in  any  matter  affecting  the  rights  of  the 
parties.  2  Bishop  on  Crim.  L.,  §  994;  3  Greenl.  Evi.,  §  195; 
Com.  vs.  Grant,  116  Mass.,  IT. 

In  this  case,  if  the  jury  believe,  from  the  evidence,  beyond 
a  reasonable  doubt,  that  a  suit  was  being  tried  before  the  said 
E.  L.,  an  acting  justice  of  the  peace  in  this  county,  in  manner 
and  form  as  charged  in  the  indictment,  and  also  that  one  of 
the  questions  which  arose  on  said  trial  was,  etc.  (or  thai  any 
witness  testified  that,  etc.),  then  the  court  instructs  you,  as  a 
matter  of  law,  that  whether  the  said  defendant  bought  the 
horse  of  A.  B.,  and  paid  Si 00  in  cash  for  it,  at  the  time;  was 
a  material  question  on  said  trial,  and  if  the  jury  further  be- 
lieve, Irom  the  evidence,  beyond  a  reasonable  doubt,  that  the 
defendant  then  and  there  Avas  sworn  as  a  witness  by  the  said 
justice,  on  said  trial,  and  testified  that,  etc.,  and  that  such  testi- 
mony was  false,  and  that  the  defendant  knew  it  to  be  false 
when  he  so  testified,  then  the  jury  should  find  the  defendant 
guilty. 

§  4.  One  Witness  SiifficiVnt,  "NVlien. — The  conrt  instructs  the 
Jury,  that  as  to  each  and  all  of  the  material  averments  in  the 
indictments,  except  the  allegation  of  the  falsity  of  the  testi- 
mony therein  stated  and  set  forth,  they  may  be  proved  by  tlie 
testimony  of  one  witness  alone;  provided,  the  jury  are  satis- 
fied, beyond  a  reasonable  doubt,  of  the  truth  thereof  b}'  tlie 
testimony  of  such  witness;  and  as  regards  proving  the  falsity 
of  such  testimony,  the  court  instructs  the  jury,  Ihat  while  that 


PERJUKT.  757 

fact  cannot  be  established  by  the  testhnony  of  one  witness 
alone,  it  is  not  absolutely  necessary  that  it  be  established  by 
the  testimony  of  two  witnesses;  it  may  be  proved  by  the  tes- 
timony of  one  witness  and  other  corroborating  facts  or  cir- 
cumstances corroborating  such  witness;  provided,  the  jury 
are  satisfied,  beyond  a  reasonable  doubt,  from  the  testimony  of 
such  witness,  and  such  corroborating  facts  and  circumstances, 
that  such  testimony  was  false  in  fact.  V.  8.  vs.  Wood^  14 
Peters,  430;  1  Greenl.  Evi.,  §  257;  State  vs.  Baymon^  20 
la.,  5S3. 

§  5.  Authority  of  the  Officer  Must  be  Showm. — The  jury  are 
further  instructed,  that  while  it  is  necessary  for  the  prosecu- 
tion, in  order  to  warrant  a  conviction  for  perjury,  to  show 
that  the  person  administering  the  oath  was  authorized,  by 
law,  to  administer  oaths,  still,  if  it  be  shown,  by  the  evidence 
beyond  a  reasonable  doubt,  that  the  oath  was  administered  by 
a  person  who  was  then  an  acting  justice  of  the  peace  in  and 
for  the  county  where  the  oath  was  administered,  this  is  suffi- 
cient evidence  of  his  authoi-ity  to  administer  the  oath.  Iverr 
vs.  People,  42  111.,  307;  State  vs.  Furlong,  26  Me.,  69;  Wes- 
ton vs.  Lu'niley,  33  Ind.,  486. 

§  6.  Testimony  Alleged  Must  be  Proved. — The  jury  are  fur- 
ther instructed,  that  while  it  is  incumbent  upon  the  peo- 
ple, in  order  to  warrant  a  conviction,  to  prove,  as  one  of 
the  material  averments  in  the  indictment,  that  the  defendant 
did  testify  to  one  or  more  of  the  statements  of  testimony  con- 
tained in  the  indictment,  still,  it  is  not  necessary  that  they 
should  be  proved  in  the  precise  words  alleged;  it  is  sufficient 
if  they  are,  substantially,  proved  in  language  and  effect  as 
therein  stated.  Peoj^le  vs.  Waryier,  5  Wen.,  271j;  3  Greenl. 
Evi.,  §  193;      Taylor  vs.  State,  48  Ala.,  157. 

§  7.  No  Reasonable  Grounds  of  Belief. — The  jury  are  in- 
structed, that  while  false  swearing,  under  an  honest  belief  that 
the  statements  are  true,  is  not  jterjury,  still,  the  jury  are  to 
determine,  from  all  the  evidence  in  the  case,  whether  such 
honest  belief  existed;  and  if  the  jury  believe,  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that  the  defendant  swore 


758  PEKJUKY. 

falsely,  as  cliarged  in  the  indictment,  and  that  he  had  no  rea- 
sonable grounds  for  believing  his  statements  to  be  true,  and  did 
not  honestly  and  in  good  faith  believe  them  to  be  true,  then 
he  is  guilty  of  perjury.  Johnson  vs.  The  Peojjle,  etc.,  94  111., 
505;  3  Greenl.  Evi.,  §  200. 

§  8.  Testimony  Must  be  Willfully  and  Knowingly  False. — That 
although  the  jury  may  believe,  from  the  evidence,  that  the 
defendant  testified  as  stated  in  said  indictment,  and  that  that 
testimony  was  false,  still,  if  the  jury  have  a  reasonable  doubt 
whether  the  defendant,  knowingly  and  willfully,  testified 
falsely  in  giving  such  testimony,  the  jury  should  find  the 
defendant  not  guilty. 

The  court  further  instructs  the  jury,  that  to  warrant  a  verdict 
of  guilty  in  this  case  the  prosecution  must  establish,  by  evi- 
dence, to  the  satisfaction  of  the  jury,  beyond  a  reasonable 
doubt,  not  only  that  the  defendant  testified  on  the  occasion 
referred  to,  that,  etc.,  as  charged  in  the  indictment,  but  also 
tliat  that  testimony  was  false,  and  furthermore,  that  the  de- 
fendant knew  it  to  be  false,  or  had  no  good  reason  to  believe 
it  to  be  true,  at  the  time  he  testified. 

§  9.  Official  Character  of  the  Justice  Must  be  Proved. — That 
among  the  material  averments  in  the  indictment  is  the  state- 
ment that  the  defendant  was  sworn  by  R.  L.;  that  the  said  ~R. 
L.  was  a  justice  of  the  peace,  having  power  and  authority  to 
administer  such  oath;  the  averment  that  the  said  R.  L.  was 
a  justice  of  the  peace,  like  the  other  averments  in  the  indict- 
ment, must  be  proved,  by  the  evidence,  beyond  a  reasonable 
doubt,  and  although  this  may  be  proved  by  showing  that  he 
was  an  acting  justice  of  the  peace  in  and  for  this  county — if 
it  be  a  fact  that  he  is  so,  still,  this  fact  must  be  established  by 
proof;  and  it  is  not  sufficiently  proved,  if  the  juiy  find  from 
the  evidence,  that  it  is  only  shown  that  he  acted  as  a  justice 
in  the  trial  of  the  cause  set  out  in  the  indictment. 

§  10.  That  the  Accused  was  Sworn  ]\rust  be  Proved. — That  to 
authorize  a  conviction  in  this  case  it  must  appear,  among 
other  things,  that  the  defendant  was  sworn,  as  a  witness,  before 
giving  his  alleged  testimony ;  and  this  must  be  proved,  beyond 


PEKJTET.  759 

a  reasonable  donbt;  and  if  the  jury  entertain  any  reasonable 
doubt  as  to  whether  the  defendant  was  afRrmed  instead  of 
being  sworn,  in  the  usual  manner  before  testifying,  the  jury 
should  find  the  defendant  not  guilty.  lUtesviaii  vs.  State,  4S 
Ind.,  473. 

§  11.  More  Than  One  Witness  Reqnired. — If  the  jury  find 
that  the  several  witnesses  who  have  testified  for  the  prosecu- 
tion {or  the  witnesses,  A.,  B.  and  C),  have  each  testified  to 
separate  and  distinct  facts  or  circumstances,  then  such  testi- 
mony must  be  considered  by  the  jury  as  the  testimony  of  a 
single  witness  upon  each  specific  point  testified  to  by  them; 
and  if  the  jury  further  believe,  from  the  evidence,  that  only 
one  of  said  witnesses  has  testified  to  facts  tending  to  show  the 
falsity  of  the  testimony,  set  forth  in  the  indictment,  and  upon 
which  the  perjury  is  assigned,  then  the  prosecution  has  failed 
to  prove  the  falsity  of  such  testimony  as  required  by  law,  un- 
less the  jury  further  find,  from  the  evidence,  that  the  testi- 
mony of  such  witness  has  been  corroborated  upon  that  point 
by  other  facts  or  circumstances  proved  on  the  trial.  State  vs. 
Heed,  57  Mo.,  252 ;  2  Wharton  Crim.  Law,  §  2276 ;  State  vs. 
Eaijmond,  20  la.,  582;  Grusen  vs.  The  State,  10  Ohio  St. 
258 ;  Hendricks  vs.  State,  26  Ind.,  493. 

The  jury  are  further  instructed  by  the  court,  that  the  law 
presumes  the  testimony  of  the  defendant  set  out  in  the  in- 
dictment to  be  true  and  of  equal  value  to  the  testimony  of  any 
other  one  witness;  and  in  order  to  convict  the  defendant  of 
perjury  the  ]ieople  must  satisfy  the  jury,  beyond  a  reasonable 
doubt,  of  its  falsity,  and  that  by  the  testimony  of  more  than 
one  witness,  or  by  the  testimony  of  one  witness  and  other 
proofs  tending  to  corroborate  such  witness;  and  unless  the 
falsity  of  the  testimony  alleged  in  the  indictment  has  been  es- 
tablished by  an  amount  of  evidence  greater  than  the  testimony 
of  one  witness  bearing  upon  that  point,  the  jury  must  find  the 
defendant  not  guilty,  whatever  may  be  their  opinion  regard- 
ing his  guilt  or  innocence. 

§  12.  Every  Material  Allegation  Must  be  Proved. — That  be- 
fore the  jury  will  be  warranted  in  finding  the  verdict  of  guilty 
in  this  case,  they  must  be  satisfied,  beyond  a  reasonable  doubt, 


760  PEKJUEY. 

from  tliG  evidence  introduced  before  tliem,  that  the  defendant 
was  sworn  as  a  witness  bj  R.  L.,  on  the  trial  of  an  action  of 
{?'ejylevln)  pending  before  him,  as  an  acting  justice  of  the 
peace  of  this  county,  wherein  A.  was  plaintiff  and  B.  was  de- 
fendant ;  that  the  value  of  the  propei'tj  in  question,  in  said 
suit,  did  not  exceed  $ ;  that  upon  such  trial  the  defend- 
ant testified  upon  oath  that  he  bought  the  horse  of  one  A.  B., 
and  paid  SlOO  in  cash  for  it  at  the  time;  that  whether  he  had 
so  bought  the  horse  was  a  material  question  on  that  trial;  that 
such  testimony  was  false,  and  that  the  defendant  knew  it  to 
be  false  at  the  time  he  so  testified;  and,  unless  the  prosecution 
have  proved  each  and  all  of  the  matters  above  enumerated, 
beyond  a  reasonable  doubt,  by  evidence  introduced  before  the 
jury,  the  jury  must  find  the  defendant  not  guilty.  2  "Wharton 
Grim.  Law,  §  2211;  Pankey  vs.  State^  1  Scam.,  80;  Montgovi- 
ery  vs.  State,  10  Ohio,  220;  State  vs.  Fassett,  16  Conn.,  457. 

§  13.  Materiality  Must  be  Shown.  —  The  jury  are  further 
instructed,  that  among  the  material  averments  in  the  indict- 
ment is  the  statement,  that  whether  the  said  defendant  had 
bought  the  horse  therein  referred  to  of  A.  B.  and  paid  $100 
for  it  in  cash  at  the  time,  became  a  material  question  on  said 
trial;  and  to  warrant  a  conviction  in  this  case,  the  fact  of  such 
materiality  must  be  established  to  the  satisfaction  of  the  jury, 
beyond  a  reasonable  doubt;  and  if,  after  a  careful  considera- 
tion of  all  the  evidence,  and  in  view  of  the  principles  of  law 
given  you  in  these  instructions,  you  entertain  any  reasonable 
doubts  as  to  whether  the  fact  above  stated  did  become  material 
on  said  trial,  you  should  find  the  defendant  not  guilty.  2 
Bishop  Grim.  Law,  §  994;  Bullock  vs.  Koon,  4  Wen.,  531; 
State  vs.  Thrift,  30  Ind.,  211 ;  Wood  vs.  People,  59  JST.  Y.  117 ; 
State  vs.  Aikens,  32  la.,  403. 

§  14.  Test  of  ]\[ateriality. — That  the  true  test  of  whether 
the  alleged  testimony  of  the  defendant  was  material  on  said 
trial  is  this:  Was  it  of  such  a  character  that,  if  true,  it  should 
properly  influence  the  action  of  the  justice  or  the  jury  on  the 
trial  in  any  matter  affecting  the  rights  of  the  ])arties  to  that 
suit;  and  if  the  jury  find,  from  the  evidence,  that  the  alleged 
testimony  could  not  properly  influence  the  action  of  the  jus- 


PEKJUKT.  701 

tice,  or  jury,  in  any  matter  affecting  the  riglits  of  tlie  parties 
to  the  suit,  then  it  is  wholly  immaterial  whether  it  was  true  or 
false,  and  the  jury  should  find  the  defendant  not  guilty.  2 
Bishop  Crim.  Law,  §  994;  State  vs,.  Keenan^  8  Rich.,  456;  State 
vs.  Shupe,  16  la.,  36;  State  vs.  Lavalley,  9  Mo.,  824;  3  Greenl. 
Ev.,  §  195. 


CHAPTER  LXI. 
RAPE. 


Sec.     1.  The  offense  defined — Consent  obtained  bj- threats. 

2 .  Submission  through  fear. 

3.  Child  under  lawful  age. 

4.  Complaining  to  others. 
6.  Consent  given. 

6.  Prosecutrix  bound  to  resist. 

7.  Power  of  resistance  not  overcome  by  force  or  fear. 

8.  Contact  of  sexual  organs  necessary — Penetration. 

9.  Character  of  the  prosecutrix  may  be  shown. 

10.  Character  of  the. prosecutrix  no  defense. 

11.  No  outcry  made. 

12.  What  is  an  assault  with  intent. 

13.  The  reasonable  doubt  as  to  the  intent. 

RAPE. 

§  1.  Rape  Defined — Consent  Obtained  by  Threats. — Tlie  court 
instructs  tlie  jury,  that  rape  is  the  carnal  knowledge  of  a  fe- 
male, forcibly  and  against  her  will,  and  where  threats  of  per- 
sonal violence  are  made  to  overcome  her  will,  and  she  believes 
that  her  person  is  in  danger  from  such  threats,  and  is  induced 
thereby  to  submit  to  the  will  of  the  person  making  such 
threats,  and  he  has  sexual  connection  with  her,  then  the  law 
considers  such  carnal  knowledge  as  having  been  forcibly  had, 
and  against  the  will  of  the  female. 

§  2.  Submission  through  Fear. — The  court  instructs  the  jury, 
that  where  a  female  submits  to  sexual  intercourse  tlirouo:h 
fear  of  personal  violence,  and  to  avoid  the  infliction  of  great 
personal  injury  upon  herself,  then  such  carnal  intercourse  is 
indictable  and  punishable  as  a  rape. 

If  the  jury  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  had  sexual  intercourse  with  the  said 
A.  B.  against  her  will,  then  the  defendant  may  be  guilty  of 
the  crime  of  rape,  although  the  said  A.  B.  did  not  make  the 

<762) 


RAPE.  763 

utmost  physical  resistance  of  which  she  was  capable  to  prevent 
such  intercourse,  provided  the  jury  further  hcHeve,  from  the 
evidence,  beyond  a  reasonable  doubt,  that  the  defendant 
threatened  to  use  force  and  to  do  her  great  bodily  injury  in 
case  she  did  not  submit,  and  that  she  did  submit  to  such  sex- 
ual intercourse  through  fear  that  the  defendant  would  do  her 
great  bodily  injury.     State  vs.  Rut\  21  Kans.,  583. 

If  you  believe,  from  the  evidence  in  this  case,  that  an  act 
of  sexual  intercourse  did  take  place  between  the  defendant 
and  the  prosecutrix,  as  averred  in  the  indictment,  then,  the 
question  as  to  whether  or  not  she  did  voluntarily  consent  to  such 
act,  is  a  question  of  fact  for  you  to  determine,  from  the  evi- 
dence in  the  case.  The  defendant  insists  that  she  did  volun 
tarily  consent  thereto,  and  that  he  used  no  force  or  coercion 
of  any  kind  to  compel  such  consent,  but  that  she  yielded  to 
his  desires  upon  his  request  alone.  While  the  prosecution 
insists  that  she  did  not  voluntarily  consent,  but  that  she  resisted 
to  the  full  extent  of  her  ability,  and  only  yielded  when  her 
will  was  overpowered,  and  that  if  she  finally  submitted  to  her 
fate  it  was  against  her  will,  and  for  fear  of  more  serious  con- 
sequences. You  are  to  say  from  the  evidence,  which,  if 
either,  is  right,  and,  if,  after  giving  due  weight  to  all  the  evi- 
dence, you  find  the  prosecutrix  did  voluntarily  consent  to  such 
act  of  intercourse,  and  not  under  coercion,  you  should  acquit; 
but  if  you  find,  beyond  a  reasonable  doubt,  that  the  act  was 
by  force,  and  against  her  will,  and  find  the  other  facts  averred 
in  the  indictment  established  beyond  a  reasonable  doubt,  you 
should  convict.  Anderson  vs.  The  State^  4  N.  E.  K,  63;  104 
Ind.,  467. 

§  3.  Child  unfler  Lawful  A,2:e. — By  the  laws  of  this  state  a 
female  child  under  the  age  of years  is  incapable  of  giv- 
ing legal  consent  to  an  act  of  sexual  intercourse,  so  that  every 
act  of  carnal  connection  with  such  a  child  will  constitute  the 
crime  of  rape,  whether  with  or  without  the  consent  of  such 
child;  and  in  this  case,  if  you  believe,  from  the  evidence,  be- 
yond a  reasonable  doubt,  that  the  defendant  had  carnal  con- 
nection with  the  said  A.  B.,  and   that  at  the  time  she  was 

under  the  age  of years,  then  the  defendant  is  guilty  of 

rape  and  the  jury  should  so  find. 


TCtt  KAFE. 

§  4.  Complaining  to  Others. — If  tlie  jury  believe,  from  llie 
evidence,  tliut  the  prosecuting  witness  told  her  {hushand)  of 
the  assault,  alleg  d  to  have  been  made  on  her,  at  the  earliest 
opportunity,  then  that  is  a  corroborating  circumstance  tend- 
ing to  sustain  the  truth  of  her  statements.  /Stale  vs.  Niles^ 
47  Yt.,  82 ;  Pefferling  vs.  State,  40  Texas,  486. 

That  in  this  class  of  cases  the  main  facts  can  nsnally  be 
proved  only  by  tlie  woman  on  whom  the  assault  is  committed, 
and  by  the  proof  of  corroborating  circumstances. 

If  the  jury  believe,  from  the  evidence,  that  at  the  time  the 
offense  is  alleged  to  have  been  committed,  the  prosecuting 
witness  made  nu  outcry,  and  did  not  immediately  complain  of 
the  offense  to  others,  but  concealed  it  for  a  considerable  length 
of  time  afterwards,  then  the  jury  should  take  this  circumstance 
into  consideration  with  all  the  other  evidence,  in  determining 
the  question  of  the  guilt  or  innocence  of  the  accused,  and 
whether  a  rape  was  in  fact  committed  or  not. 

Though  the  jury  may  believe,  from  the  evidence,  that  tlie 
prosecuting  witness  did  not  tell  her  {mother^  or  others  of  the 
alleged  outrage  upon  her  until,  etc.,  still,  if  the  jury  believe, 
from  the  evidence,  beyond  a  reasonable  doubt,  that  the  defend- 
ant was  guilty  of  the  crime  charged  in  the  indictment,  and,  if 
the  jury  further  believe,  from  the  evidence,  that  at  the  time  of 
the  alleged  outrage  the  defendant  threatened  to  take  her  life  if 
she  ever  told  of  what  had  occurred,  and  she  was  afraid  she 
would  lose  her  life,  or  suffer  some  great  bodily  harm,  if  she 
should  tell  of  the  injuries  complained  of,  then  these  facts 
would  excuse  the  prosecuting  witness  from  communicating  the 
knowledge  of  sucli  injury  to  others.  Turner  vs.  The  People, 
33  Mich.,  3G3. 

§  5.  Consent  Given. — If  the  jury  believe,  from  the  evidence, 
that  the  prosecuting  witness,  L.  X.,  w^as  a  female  above  the 
age  of  {teii)  years  at  the  time  of  the  alleged  offense,  then  she 
was  capable  in  law  of  giving  her  consent  to  any  carnal  knowl- 
edge of  her  by  the  defendant;  and  before  you  can  find  tlie 
accused  guilty,  you  must  be  satisfied,  from  the  evidence,  be- 
yond a  reasonable  doubt,  that  he  had  carnal  knowledge  of  the 
said  L.  X.  forcibly  and  against  her  will. 

To  authorize  a  conviction  for  rape  the  jury  must  believe, 


KAPE.  765 

from  tlic  evidence,  beyond  a  reasonaLle  doubt,  that  the  de. 
fendant  had  carnal  connection  with  the  prosecuting  witness 
against  her  will,  and  that  she  did  not  yield  her  consent  during 
any  part  of  the  act.  To  constitute  the  crime  of  rape  the  will 
of  the  female  alleged  to  have  been  outraged,  must  have  been 
overcome  either  by  force,  violence,  or  fear.  If  she  consents 
in  the  least  during  any  part  of  the  act,  there  is  not  such  an 
opposing  will  as  the  law  requires  to  convict  on  the  charge  of 
rape.  Broion  vs.  The  People^  36  Mich.,  203  ;  XJlrich  vs.  The 
People,  39  Mich.,  245. 

§  6.  Prosecutrix  Bound  to  Resist. — If  the  jury  believe,  from 
the  evidence,  that  at  the  time  the  rape  is  alleged  to  hav.e  been 
committed,  the  prosecuting  witness  had  it  in  her  power  to 
resist  the  defendant,  and  prevent  the  offense  by  kicking,  strik- 
ing and  biting  him,  or  by  any  other  mode  calculated  to  repel 
his  attack,  and  that  she  failed  to  make  all  the  resistance  then 
in  her  power  to  make,  then  this  is  a  circumstance  that  the  jury 
should  take  into  consideration  with  all  the  other  evidence  in 
the  case,  and  as  tending  to  show  that  no  rape  was  committed. 
Anderson  vs.  The  State,  104  Ind.,46T;  Matthews  vs.  The  State. 
19  Neb.,  330. 

If  the  jnry  believe,  from  the  evidence,  that  the  force  and 
resistance  used  by  the  prosecutrix,  and  relied  upon  by  tlie 
prosecution  for  a  conviction,  at  the  time  of  the  commission  of 
the  alleged  raj^e,  were  so  feebly  exerted  by  her  as  to  have  in- 
vited rather  than  discournged  the  advances  of  the  accused, 
they  may  well  doubt  whether  the  rape  was  committed,  and,  if 
they  do  so  doubt,  tliey  should  iind  the  defendant  not  guilty. 
People  vs.  Morrison,  1  Parker  Crim.  li.,  625  ;  People  vs. 
Allot,  19  Wend.,  192;  Hull  vs.  State,  22  Wis.,  580;  Croghan 
vs.  State,  22  Wis.,  444;  State  vs.  Cross,  12  la.,  m. 

§  7.     Power  of  Resistance  not  Overcome  by  Force  or  Fear. — If 

the  jury  believe,  from  the  evidence,  that  the  prosecutrix,  at 
the  time  of  the  alleged  offense,  was  a  strong,  robust  woman, 
and  that  the  defendant  made  no  threats  of  personal  violence, 
and  in  no  manner  deprived  her  of  her  strength,  then  the  jury 
may  well  doubt  whether  the  crime  of  rape  was  committed ; 
and  if  they  do  so  doubt,  they  cannot  convict  the  defendant  of 
that  crime. 


766  EAPE. 

That  it  is  a  -u-ell  settled  principle  of  law  that  when  the 
accuser  and  the  accused  are  both  in  the  possession  of  heahh 
and  strength,  and  of  the  ordinary  amount  of  physical  and 
mental  power,  and  in  circumstances  to  fully  exercise  that 
power,  the  perpetration  of  the  crime  of  rape  is  of  difficult,  if 
not  impossible,  occurrence. 

§  8.  Contact  of  Sexnal  Organs  Necessary — Penetration. — The 
court  further  instructs  the  jury,  that  in  a  prosecution  for  rape 
upon  a  female  above  the  age  of  {ten)  years,  where  the  people 
rely  exclusively  upon  proof  that  threats  and  intimidation  are 
employed  to  gain  the  consent  of  the  female  upon  whom  the 
rape  is  charged,  such  threats  and  intimidation,  together  with 
actual  contact  of  the  sexual  organs,  must  be  proved,  beyond  a 
reasonable  doubt,  before  the  accused  can  be  convicted  of  rape. 

§  9.  Character  of  the  Woman  May  be  Shown. — The  jury  are 
instructed,  that  in  prosecutions  of  this  kind  the  character  of 
the  woman  may  be  called  in  question  for  the  purpose  of  atfect- 
ing  her  credibility  as  a  witness,  and  as  a  circumstance  affecting 
the  probability  of  the  act  of  intercourse  being  voluntary  or 
against  her  will,  and  if  the  jury  believe,  from  the  evidence, 
that  the  prosecuting  witness  is  a  woman  of  bad  fame  or  evil 
repute,  they  may  take  this  fact  into  consideration  for  that 
purpose,  together  with  all  the  other  evidence  in  the  case,  in 
determining  the  amount  of  credit  to  which  her  testimony  may 
be  entitled.     Anderson  vs.  The  State,  4  N.  E.  Eep.,  63. 

§  10.  Character  of  Prosecntrix  no  Defense. — All  pei'sons  are 
entitled  to  equal  protection  before  the  law;  and  it  matters  not 
what  may  have  been  the  previous  character  of  a  woman,  she 
cannot  be  assaulted  with  impunity;  and  where  the  law  does 
not  discriminate,  3'ou,  as  a  jury,  cannot;  hence  an  assault  upon 
any  woman  with  the  intent  to  commit  a  rape  is  a  crime,  and 
the  person  making  the  assault  is  amenable  to  the  law. 

And  in  this  case,  if  you  believe,  from  the  evidence,  that  de- 
fendant made  an  assault  upon  A.  B.,  and  that  said  assault  was 
committed  with  intent  to  commit  a  rape  as  charged  in  the 
indictment,  you  should  find  the  defendant  guilty.  Peffer- 
Ihig  vs.  The  State,  50  Texas,  486. 


EAPE.  767 

Evidence  has  been  introduced  as  to  the  moral  character  of 
the  prosecuting  witness,  and*  as  to  her  reputation  for  chastity 
and  virtue.  You  are  not  to  understand  from  this  that  a  rape 
cannot  be  committed  upon  a  woman  of  bad  moral  character. 
A  woman  may  be  a  common  prostitute  and  may  still  be  the 
victim  of  a  rape.  This  evidence  has  been  introduced  only  for 
the  purpose  of  affecting  her  credibility  as  a  witness,  and  as  a 
circumstance  affecting  the  probability  of  the  act  of  intercourse 
being  voluntary  or  against  her  will,  upon  the  theory  that  a 
person  of  bad  moral  character  is  less  likely  to  speak  the  truth 
as  a  witness,  than  one  of  good  moral  character,  and  that  a 
woman  who  is  chaste  and  virtuous  will  be  less  likely  to  consent 
to  an  act  of  illicit  carnal  intercourse,  than  one  who  is  unchaste. 
So  that  whatever  conviction  this  evidence  may  produce  in 
your  minds  as  to  whether  she  is  of  good  or  bad  moral  charac 
ter,  or  as  to  whether  she  is  chaste  or  unchaste,  you  will  treat 
it  as  a  circumstance  affecting  her  credibility  to  aid  you  in 
determining  whether  her  story  is  true  or  false,  and  the  act  of 
intercourse  voluntary  or  against  her  will.  Anderson  vs.  State, 
4N.  E.R,  63;  104  Ind.  467. 

§  11.  No  Outcry  Made. — If  the  jury  believe,  from  the  evi- 
dence, that  at  the  time  of  the  alleged  rape  other  people  were 
at  the  same  time  in  the  same  house,  who  might  easily  have 
heard  her  had  she  made  any  outcry,  and  that  she  in  fact  made  no 
outcry  at  the  time  defendant  was  attempting  to  have  connec- 
tion with  her,  these  facts  will  tend  to  raise  a  presumption  that 
no  rape  was  committed  upon  her  at  the  time.  State  vs. 
Eagerman,  47  la.  151. 

§  12.  Assault  with  Intent  to  Commit  a  Rape. — The  jury 
should  convict  the  defendant  of  an  assault  with  intent  to  com- 
mit a  rape,  if  they  believe,  from  the  evidence,  beyond  a  rea- 
sonable doubt,  that  at  the  time  in  question  he  committed  an 
assault  on  the  prosecutrix  for  the  purpose  of  having  carnal 
intercourse  with  her,  and  that  in  making  the  assault  he  in- 
tended to  use  whatever  force  might  be  necessary  to  overcome 
the  prosecutrix  and  accomplish  his  purpose.  State  vs. 
Cannada,  68  la.,  397;  Krum  vs.  State,  19  Neb.,  728. 

It  must  be  shown  in  this  case  by  the  evidence,  beyond  a 


768  RAPE. 

reasonable  doubt,  not  only  that  the  defendant  committed  an 
assault  upon  the  female,  but  that  he  did  so  with  intent  to 
compel  her,  by  force  and  against  her  will,  to  have  sexual 
intercourse  with  him  notwithstanding  any  resistance  she  might 
make.  State  vs.  McDevitt,  69  la.,  549;  State  vs.  Kendall, 
34  K  W.  Eep.,  843. 

In  order  to  convict  the  defendant  of  an  assault  with  an  intent 
to  commit  a  rape,  the  jury  must  be  satisfied  beyond  a  reason- 
able doubt,  from  the  evidence,  that  the  defendant  assaulted 
the  prosecuting  witness  with  the  intent  at  the  time  to  over- 
come any  resistance  which  might  be  offered  by  her.  And  so 
although  the  jury  may  believe  that  the  defendant,  inflamed 
with  passion,  went  to  the  bed  of  the  prosecuting  witness  with 
intent  to  have  carnal  connection  with  her,  still,  if  j-ou  have  any 
reasonable  doubt,  from  the  evidence,  as  to  whether  he 
intended  to  accom]ilish  liis  purpose  by  force  and  to  overcome 
by  violence  or  fear  any  force  that  might  be  offered  to  resist 
him,  or  whether  he  went  with  the  design  only  to  accomplish  his 
purpose  if  he  could  without  force  or  threats,  then  the  act 
would  only  amount  to  an  assault  or  assault  and  battery,  but 
tlie "defendant  cannot  be  convicted  of  an  assault  with  an 
intent  to  commit  a  rape.     People  vs.  Lynch,  2'3  JMich.,  274. 

If  you  are  satisfied  beyond  a  reasonable  doubt,  from  the 
evidence,  that  the  defendant  took  hold  of  the  prosecuting  wit- 
ness with  intent  to  have  carnal  intercourse  with  her  against 
her  will,  and  with  an  intent  to  accomplish  his  object  at  all 
events  by  his  strength  and  power,  or  by  threats  of  violence, 
against  any  resistance  which  she  might  offer,  then  he  v;as 
guilty  of  an  assault  with  intent  to  commit  a  rape,  whether 
he  succeeded  in  his  purpose  or  not.  People  vs.  Lynch,  29 
Mich.,  274. 

§  13.     The  Intent  Must  be  Slio\\-n  Beyond  a  Reasonable  Donl)t. — 

Thejury  arefurtlier  instructed,  as  a  matter  of  law,  that  the  intent 
18,  in  this  case,  the  essence  of  the  offense  charged,  and,  although 
you  may  find,  from  the  evidence,  that  the  defendant  did  com- 
mit an  assault  upon  the  prosecutrix  for  the  purpose  of  having 
carnal  intercourse  with  her,  still,  if,  after  considering  all  the 
evidence  in  the  case,  you  are  not  satisfied  be3'ond  a  reasonable 
doubt,  that,  at  the  time  of  committing  the  assault,  he  intended 


KAPE.  7G9 

to  compel  lier  by  force  and  a^^ainst  her  will,  to  have  sexual 
intercourse  with  hira,  notwithstanding  any  resistance  she 
might  make,  then  it  will  be  your  duty,  under  the  law,  to 
acquit  the  defendant.  State  vs.  Cannada,  68  la.,  397;  Kriim 
vs.  The  State,  19  Neb.,  728;  State  vs.  Kendall,  34  N.  W.  Eep., 
843. 

49 


CHAPTER  LXII. 
EOBBERY. 


Sec.     1.  Robbery  defined. 

2.  Facts  constituting'  robbery. 

3.  The  taking  must  be  by  force  or  fear. 

4.  Property  must  be  proved  as  charged. 

5.  The  verdict  may  be  for  larceny. 

6.  What  is  meant  by  taking  from  the  person,  etc. — People's  in- 

structions in  State  vs.  Calhoun,  Iowa. 

KOBBEKT. 

1.  Robbery  Defined. — The  court  instructs  the  Jury,  that  rob- 
bery is  the  felonious  and  violent  taking  of  money,  goods,  or 
other  valuable  thing  from  the  person  of  another,  by  force  or 
intimidation. 

The  court  instructs  the  jury,  as  a  matter  of  law,  that  robbery 
is  the  felonious  and  violent  taking  of  money,  goods  or  other 
valuable  thing,  from  the  person  of  another  by  force  or  in- 
timidation. Every  person  guilty  of  robbery,  shall  be  impris- 
oned in  the  penitentiary  not  less  than  one  year  nor  more  than 
fourteen  years ;  or  if  he  is  armed  with  a  dangerous  weapon, 
with  intent,  if  resisted,  to  kill  or  maim  such  person,  or  being 
so  armed,  he  wounds  or  strikes  him,  or  if  he  has  any  confed- 
erate present  so  armed,  to  aid  or  abet  him,  he  may  be  impris- 
oned for  any  term  of  years  or  for  life.     (Illinois.) 

§  2.  Facts  Constituting;  Robbery. — If  the  jury  believe,  from 
the  evidence,  beyond  a  reasonable  doubt,  that  some  time  about 
the  day  of,  etc.,  A.  B,  was  at  the  saloon  of  E.  M.,  in  this 
county,  and  that  he  then  had  in  his  possession  any  of  the  treasury 
notes  or  bank  bills  described  in  the  indictment  in  this  case,  and 
that  such  notes  or  bills  were  genuine,  and  of  some  value,  and 
furtlier,  tliat  one  C.  D.  requested  the  said  A.  B.  to  loan  him 
some  money,  and  that  thereupon  the  said  A.  B.  took  out  his 
said  treasury  notes  or  bank  bills  for   the   purpose  of  making 

(770) 


KOI513ERT.  771 

siicli  loan,  and  further,  that  the  said  defendant  then  grubbed 
the  said  money  and  forcibly  took  the  same  from  the  jierson 
of  the  said  A.  B.,  and  then  ran  away  with  said  money,  with 
the  intention  of  stealing  the  same,  this  would  constitute  rob- 
bery on  the  part  of  the  defendant,  and  the  jury  should  find 
him  guilty,  in  manner  and  form  as  charged  in  the  indictment. 
Roscoe's  Crim.  Evi.,  893. 

The  jury  are  instructed,  that  to  constitute  the  crime  of  rob- 
bery, it  is  not  necessary  that  any  force  be  used  to  obtain 
possession  of  the  property.  It  is  sufficient  if  such  possession 
is  obtained  from  the  person  of  the  owner,  against  his  will,  by 
threats  or  menaces  of  personal  violence  against  him.  Shinn 
vs.  State,  64  Ind.,  13. 

To  constitute  the  crime  of  robbery  it  is  not  necessary  that 
the  property  should  be  actually  taken  from  the  person  of  the 
owner;  if  it  is  in  his  personal  custody,  and  is  taken  in  hig 
presence,  without  his  consent,  by  force,  or  by  putting  him  in 
fear,  it  is  sufficient  to  maintain  an  indictment  for  robbery. 
Roscoe's  Crim.  Evi.,  895 ;  State  vs.  Calhoun,  34  N.  W.  Eep., 
194;  2  Bish.  C.  L.,  §  975;  Whart.  Crim.  Law,  §  1696. 

§  3.  Taking  Must  be  by  Force  or  Fear. — To  justify  a  verdict 
of  guilty  of  robbery,  in  manner  and  form  as  charged  in  the 
indictment,  it  must  appear,  from  the  evidence,  to  the  satisfac- 
tion of  the  jury,  beyond  a  reasonable  doubt,  that  some  one  or 
more  of  the  treasury  notes,  or  bank  bills,  described  in  the 
indictment,  were  taken  from  the  person  or  from  the  immedi- 
ate presence  and  possession  of  the  said  A.  B.  by  the  defendant 
by  force,  or  by  putting  him  in  fear ;  and  unless  this  has  been 
proved,  beyond  a  reasonable  doubt,  the  jury  should  acquit  the 
defendant  from  the  charge  of  robbery, 

§  4.  Property  Must  be  Proved,  as  Charged. — In  order  to 
convict  the  defendant  on  the  charge  of  robbery,  the  people 
must  prove,  beyond  a  reasonable  doubt,  that  the  bills  or  treas- 
ury notes  mentioned  in  the  indictment,  or  some  of  them, 
were  feloniously,  and  against  the  will  of  the  faid  A.  B.,  taken 
from  his  person  or  from  his  immediate  presence  and  posses- 
sion, in  manner  and  form  as  charged  in  the  indictment ;  and 
unless  this  has  been  so  proved,  the  jury  should  find  the 
defendant  not  guilty  of  the  charge  of  robbery. 


772  EOBBEKT. 

§  5.  Vordiot  may  be  for  Larceny. — Tf,  in  view  of  all  the  evi- 
dence in  this  case,  the  jnry  entertain  any  reasonable  donbt  as 
to  whether  the  defendant  obtained  the  goods  in  question  from 
the  possession  of  the  plaintiff  by  force  or  intimidation,  but  do 
believe,  from  the  evidence,  beyond  a  reasonable  doubt,  that  the 
defendant  feloniously  took  the  property  in  question  from  the 
possession  of  tlie  plaintiff  by  stealth  or  by  fraud,  with  intent 
to  steal  the  same,  in  manner  and  form  as  charged  in  the  indict- 
ment, then  the  jury  may  find  the  defendant  guilty  of  the  crime 
of  larceny. 

Note. — Statement.  The  defendant  bound  the  prosecuting  witness  and 
putting  her  in  fear  by  this  violence  be  extorted  from  her  information  of  the 
place  where  she  kept  her  money  and  watch  in  another  room  of  the  house. 
Leaving  her  bound  he  went  into  that  room  and  took  the  money.  The 
Supreme  Court  of  Iowa  held  that  the  money  was  taken  from  her  person .  in 
the  sense  of  the  words  used  in  the  statute.  Citing  2  Bish.  Crim.  Law,  §  975; 
Whart  Crim.  Law,  §  1696.  The  following  instructions  for  the  State  were 
sustained.     (State  vs.  Calhoun,  4  N.  W.  Rep.  194.) 

§  6.  Wliat  is  Meant  by  Taking  from  tbe  Person. — It  is  provided 
by  our  statutes  that  if  any  person  with  force  or  violence,  or 
by  putting  in  fear,  steal  and  take  from  the  person  of  another 
any  proi^erty  that  is  subject  of  larceny,  he  is  guilty  of  robbery. 

Under  this  statutory  provision,  it  is  not  essential  that  the 
stealing  and  taking,  if  any,  was  literall^^  from  the  person,  or, 
in  other  words,  that  the  property,  if  any,  was  on,  or  at- 
tached to,  or  touching,  the  literal  physical  person  of  the  party 
alleged  to  have  been  robbed,  but  it  is  sufficient  if  the  stealing 
and  taking,  if  any,  was  done  in  the  immediate  presence  of  such 
person,  and  while  the  pro)3erty  was  under  the  control  and  in 
the  custody  of  such  party. 

If,  therefore,  you  find  from  the  evidence,  beyond  a  reason- 
able doubt,  that  the  defendant,  in  this  county  and  state,  at  a 
time  within  three  years  next  preceding  the  finding  of  the 
indictment  in  this  case,  did  steal  and  take  from  the  immedi- 
ate presence  of  the  said  N.  B.,  named  in  the  indictment,  the  prop- 
erty named  in  the  indictment,  or  some  part  of  it,  and  that 
the  stealing  and  taking,  if  any,  was  accomplished  with  force  or 
violence  towards  said  N.  B.,  or  by  putting  her  in  fear,  and 
you  further  so  find  that  the  ]iroperty,  if  any,  thus  stolen,  was 
at  the  time  owned  b}',  or  in  the  possession  of,  said  N.  B,,  and 


ROBBERY.  773 

was  of  some  value,  then  and  in  sueli  case  you  should  return 
a  verdict  of  guilty  of  robbery;  but  if  you  do  not  so  find  as  to 
these  several  matters,  you  cannot  find  the  defendant  guilty  of 
robbery. 

It  is  not  necessary,  in  order  to  constitute  a  stealing  and  car- 
rying away  in  the  immediate  presence  of  tlie  said  N.  B.,  that 
it  should  have  deen  done,  if  done,  in  her  immediate  view  or 
where  she  could  see  it  done.  And  if  you  find,  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that  the  defendant  made  a 
violent  assault  u])on  said  N.  B.  by  choking  her  and  causing 
her  to  fall  upon  the  floor  of  one  of  the  rooms  or  apartments 
of  her  house,  and  then  tied  her  hands  and  feet  for  the  purpose 
and  with  the  intention  of  stealing  some  money  or  property  in 
the  house,  and  you  further  so  find  that  she,  through  fear  of 
personal  violence,  told  defendant  where  her  money  or  watch 
was  in  an  adjoining  room  or  rooms,  and  you  further  so  find 
that  thereupon  defendant  passed  through  a  door  or  doors  into 
such  room  or  rooms,  and  did  there,  within  hearing  of  said  N. 
B.,  take  and  carry  away  from  said  room  or  rooms  the  property 
described  in  the  indictment,  or  some  part  thereof,  and  3'^ou 
further  so  find  that  such  property  was  under  her  immediate 
control,  and  that  such  taking,  if  any,  was  against  the  will  of 
the  said  N.  B.,  and  was  without  any  right  or  claim  of  right  of 
defendant  in  said  property,  and  with  the  intent  to  permanently 
deprive  her  thereof,  then,  and  in  such  case,  there  would  be 
a  sufficient  stealing  and  takiug  from  the  immediate  presence 
of  the  said  ]^.  B.,  wnthin  the  meaning  of  the  law. 

It  is  charged  in  the  indictment  that,  at  the  time  of  the 
alleged  robbery,  the  defendant  was  armed  with  a  dangerous 
M-eapon,  with  intent,  if  resisted,  to  kill  or  maim  the  said  'N. 
B.,  and,  being  so  armed,  did  wound  said  N.  B.  If  you  find 
the  defendant  guilty  of  robbery,  you  will  determine  whether 
this  charge  in  the  indictment  is  sustained.  The  only  evi- 
dence relied  upon  by  the  state,  as  tending  to  show  that 
defendant  was  armed  with  a  deadly  weapon,  is  the  evi- 
dence tending  to  show  that,  at  the  time  of  the  alleged  robbery, 
the  defendant  had  with  him  the  piece  of  cord  or  rope  intro- 
duced in  evidence.  It  is  for  you  to  say  from  the  evidence, 
whether  he  did  have  and  used  such  cord  or  rope;  and,  if  he 
did,  whether  the  same  was  a  dangerous  weapon;  and,  if  it  was, 


774  KOBBEKY. 

whether  he  intended  bj  the  use  of  it  (if  he  did  use  it)  if  re- 
sisted, to  kill  or  maim  said  ]^.  B.  therewith  or  did  wound  her. 
A  dangerous  weajion  is  one  which,  from  the  use  made  of  it 
at  the  time,  is  likely  to  produce  death,  or  do  great  bodily 
harm;  and  unless  you  find  that  said  cord  or  rope  was  of  such 
a  character  you  cannot  hnd  that  the  defendant  was  armed 
with  a  dangerous  weapon.  If  it  was  only  calculated  to  pro- 
duce, from  the  use  of  it  (if  used),  a  slight  injury  upon  the 
person  of  the  said  N.  B.,  then  it  would  not  be  a  dangerous 
weapon  wnthin  the  meaning  of  the  law. 


CHAPTER   LXIII. 

MISCELLANEOUS  CRIMINAL  INSTRUCTIONS. 


Sec.     1.  Attempt  to  commit  a  crime. 

2.  Bigamj-. 

3.  Concealing'  stolen  property. 

4.  Counterfeiting. 

5.  False  pretenses. 

6.  Forgery. 

7.  Habitual  criminal. 

8.  Taking  property  without  consent  of  owner. 

9.  Seduction. 

§  1.  Attempt  to  Commit  a  Criminal  Offense. — The  court  in- 
structs the  jui-y,  as  a  matter  of  Jaw,  that  whoever  attempts  to 
commit  any  offense  prohibited  by  law,  and  does  any  act  towards 
it  but  fails,  or  is  intercepted  or  prevented  in  its  execution, 
where  no  express  provision  is  made  by  law  for  the  punishment 
of  such  attempt,  shall  be  punished,  when  the  offense  thus  at- 
tempted is  a  felony,  by  imprisonment  in  the  penitentiary  not 
less  than  one,  nor  more  than  five  years;  in  all  other  cases,  by 
fine  not  exceeding  three  hundred  dollars,  or  by  confinement  in 
the  county  jail  not  exceeding  six  months. 

§  2.  Bigamy — Illinois  Statute. — The  conrt  instructs  the  jury, 
as  a  matter  of  law,  that  whoever,  having  a  former  husband  or 
wife  living,  marries  another  person,  or  continues  to  cohabit 
with  such  second  husband  or  wife  in  this  state,  shall  be  deemed 
guilty  of  bigamy,  and  be  imprisoned  in  the  penitentiary  not 
less  than  one  nor  more  than  five  years,  and  fined  not  exceeding 
$1,000.  Pi'ovided^  nothing  herein  contained  shall  extend  to 
any  person  whose  husband  or  wife  shall  have  been  continually 
absent  from  such  person  for  tlie  space  of  five  years  together, 
prior  to  said  second  marriage,  and  he  or  slie  not  knowing  such 
husband  or  wife  to  be  living  within  that  time.  Also,  nothing 
herein  contained  shall  extend  to  any  person  who  is,  or  shall 
be  at  the  time   of  such  second  marriage,  divorced  by  lawful 

(775) 


Y76  MISCELLANEOUS    INSTKUCTIOKS. 

authority  from  the  bands  of  such  former  marriage,  or  to  any 
person  where  the  former  marriage  hath  been,  by  lawful 
authority,  declared  void. 

It  shall  not  be  necessary  to  prove  either  of  the  marriages  by 
the  register  or  certificate  thereof,  or  other  record  evidence; 
but  the  same  may  be  proved  by  such  evidence  as  is  admissible 
to  prove  a  marriage  in  other  cases.  The  offense  may  be  al- 
leged to  have  been  committed,  and  the  trial  may  take  place  in 
the  county  where  cohabitation  shall  have  occurred. 

§  3.  Concealing  Stolen  Property. — The  court  instructs  the 
jury,  as  a  matter  of  law,  that  every  person,  who,  for  his  own 
gain,  or  to  prevent  the  owner  from  again  possessing  his  prop- 
erty, shall  buy,  receive  or  aid  in  concealing  stolen  goods,  or 
anything  the  stealing  of  which  is  declared  to  be  larceny,  or 
property  obtained  by  robbery  or  burglary,  knowing  the  same 
to  have  been  so  obtained,  shall  be  imprisoned  in  the  peniten- 
tiary not  less  than  one  nor  more  than  ten  years,  or  if  such 
goods  or  other  property  or  thing  does  not  exceed  the  value  of 
fifteen  dollars,  he  shall  be  fined  not  exceeding  one  thousand 
dollars  and  confined  in  the  county  jail  not  exceeding  one  year. 

§  4,  Counterfeiting — Illinois  Statnte. — The  court  instructs  the 
jury,  as  a  matter  of  law,  that  whoever  shall  make,  pass,  utter 
or  publish,  with  an  intention  to  defraud  any  other  person,  or 
with  like  intention  shall  attempt  to  pass,  utter  or  publish,  or 
shall  have  in  his  possession,  with  like  intent  to  pass,  utter 
or  publish,  any  fictitious  bill,  note  or  check  purporting  to  be 
the  bill,  note  or  check,  or  other  instrument  of  writing  for 
payment  of  money  or  property  of  some  bank,  corporation, 
co-partnership  or  individual,  when,  in  fact,  there  shall  be  no 
such  bank,  corporation,  co-partnership  or  individual  in  exist- 
ence, the  said  person,  knowing  the  said  bill,  note,  check  or 
instrument  of  writing  for  the  payment  of  money  or  ]>roperty 
to  be  fictitious,  shall  be  imprisoned  in  the  penitentiary  not 
less  than  one  nor  more  than  twenty  years. 

§  5.  False  Pretenses — Illinois. — The  court  instructs  the  jury, 
as  a  matter  of  law,  that  whoever,  with  intent  to  cheat  or  de- 
fraud another,  designedly  by  color  of  any  false  token  or  writ- 


MISCELLANEOUS    INSTKUCTIONS.  777 

ing,  or  bj  any  false  pretense,  obtains  the  signature  of  any  per- 
son to  any  written  instrument,  or  obtain  from  any  person  any 
money,  personal  property  or  other  valuable  thing,  shall  be 
fined  in  any  sum  not  exceeding  $2,000,  and  imprisoned  not 
exceeding  one  year,  and  shall  be  sentenced  to  restore  the  prop- 
erty so  fraudulently  obtained,  if  it  can  be  restored.  No  per- 
son indicted  for  such  offense,  shall  be  acquitted,  for  the  reason 
that  the  facts  set  forth  in  the  indictment,  or  appearing  in  evi- 
dence, may  amount  to  a  larceny  or  other  felony;  nor  shall  it 
be  deemed  essential  to  a  conviction,  that  the  property  in  the 
goods  or  things  so  obtained  shall  pass  with  the  possession  to 
the  person  so  obtaining  it. 

§  6.  Forgery — Illinois  Statute. — The  court  instructs  the  jury, 
as  a  matter  of  law,  that  every  person  who  shall  falsely  make, 
alter,  forge  or  counterfeit  any  record  or  other  authentic  mat- 
ter of  a  public  nature,  or  any  charter,  letters  patent,  deed, 
lease,  indenture,  writing  obligatory,  will,  testament,  codicil, 
annuity,  bond,  covenant,  post  note,  check,  draft,  bill  of  ex- 
change, contract,  promissory  note,  due  bill  for  the  payment  of 
money  or  property,  receipt  for  money  or  property,  power  of 
attorney,  any  auditor's  warrant  for  the  payment  of  money  at 
the  treasury,  county  order,  or  any  accountable  i-eceipt,  or  an}'- 
order  or  warrant,  or  request  for  the  payment  of  money  or  the 
delivery  of  goods  or  chattels  of  any  kind,  or  for  the  delivery 
of  any  instrument  of  writing  or  acquittance,  release  or  receipt 
for  money  or  goods  (or  any  acquittance,  release  or  discharge  of 
any  debt,  account,  action,  suit,  demand  or  other  thing),  real  or 
personal,  or  any  transfer  or  assurance  of  money,  stock,  goods, 
chattels,  or  other  property  whatever,  or  any  letter  of  attorney 
or  other  power  to  receive  money,  or  to  receive  or  transfer 
stock  or  annuities,  or  to  let,  lease,  dispose  of,  alien  or 
convey  any  goods  or  chattels,  lands  or  tenements,  or  other 
estate,  real  or  personal,  or  any  acceptance  or  indorsement  of 
any  bill  of  exchange,  promissory  note,  draft  or  order,  or  assign- 
ment of  any  bond,  writing  obligatory,  or  promissory  note  for 
money  or  other  property,  or  any  ticket  or  pass  for  the  passage 
of  any  person  upon  any  raih-oad  or  other  conveyance,  or  for 
the  admission  of  any  person  to  any  entertainment  for  which  a 
consideration  is  required,  or  any  other  written   instrument  of 


778  MISCELLANEOUS     INSTRUCTIONS. 

anotlier,  or  purporting  to  be  sucli,  bj  which  any  pecim'arj  de- 
mand or  obliijation,  or  any  right  in  any  property  is,  or  pur- 
ports to  be,  created,  increased,  conveyed,  transferred,  dimin- 
ished or  destroyed,  or  shall  counterfeit  or  forge  the  seal  or 
handwriting  of  another,  with  intent  to  damage  or  defraud  any 
person,  body  politic  or  corporate,  whether  the  said  person, 
body  politic  or  corporate,  reside  in  or  belong  to  this  state  or 
not,  or  shall  utter,  publish,  pass  or  attempt  to  pass  as  true 
and  genuine,  or  caused  to  be  uttered,  published,  passed  or  at- 
tempted to  be  passed  as  true  and  genuine,  any  of  the  above 
named  false,  altered,  forged  or  counterfeited  matters,  as  above 
specified  and  described,  knowing  the  same  to  be  false,  altered, 
forged  or  counterfeited,  with  intent  to  prejudice,  damage  or 
defraud  any  person,  body  politic  or  corporate,  whether  the 
said  person,  body  corporate  or  politic,  reside  in  this  state  or 
not,  every  perton  so  offending  shall  be  deemed  guilty  of 
forgery,  and  shall  be  imprisoned  in  the  penitentiary,  etc. 

§  7.  Habitual  Criminals. — Illinois  Statute. — The  court  in- 
structs the  jury,  as  a  matter  of  law,  that  whenever  any  person 
having  been  convicted  of  either  of  the  crimes  of  burglary, 
grand  larceny,  horse-stealing,  robbery,  forgery  or  counterfeit- 
ing, shall  thereafter  be  convicted  of  any  one  of  such  crimes, 
committed  after  such  first  conviction,  the  punishment  shall  be 
imprisonment  in  the  penitentiary  for  the  full  term  provided 
by  law  for  such  crime  at  the  time  of  such  last  conviction  there- 
for ;  and  whenever  any  such  person,  having  been  so  convicted 
the  second  time,  as  above  provided,  shall  be  again  convicted  of 
any  of  said  crimes,  committed  after  said  second  conviction,  the 
punishment  shall  be  imprisonment  in  the  penitentiary  for  a 
period  not  less  than  fifteen  3'ears.  Provided,  that  such  former 
conviction  or  convictions,  and  judgment  or  judgments,  shall  be 
set  forth  in  apt  words  in  the  indictment. 

§  8.     Taking   Property  without  Consent  of   the   Owner. — The 

court  instructs  the  jury,  as  a  matter  of  law,  that,  in  the  lan- 
guage of  the  statute,  whoever  willfully  and  maliciously  takes, 
drives,  rides  or  uses  any  horse,  ox  or  other  draught  animal,  or 
takes  or  uses  any  vehicle  or  boat,  the  ]iro])erty  of  another, 
without  the  consent  of  the  owner  or  person  having  legal  cus- 


MISCELLANEOUS     INSTRUCTIONS.  779 

tody,  care  and  control  of  the  same,  shall  be  fined  not  exceed- 
ing three  hundred  dollars,  or  be  confined  in  the  county  jail 
not  exceeding  one  year.  The  provisions  of  this  section  shall 
not  apply  to  any  case  of  taking  the  property  of  another  with 
intent  to  steal  the  same. 

§  7.  Seiliiction. — The  jury  are  instructed  that  illicit  inter- 
course alone  does  not  constitute  the  crime  of  seduction.  To 
constitute  this  offense  it  must  appear  from  the  evidence,  be- 
yond a  reasonable  doubt,  that  the  complaining  witness  yielded 
to  some  sufficient  promise  or  inducement  held  out  to  her  by 
the  defendant  and  had  been  thereby  drawn  aside  from  the 
path  of  virtue  which  previous  to  that  time  she  had  been 
honestly  pursuing.    People  vs.  ClarJc,  33  Mich.,  112. 

If  an  unmarried  man  by  his  visits  and  attentions  to  an 
unmarried  female  gains  her  affections  and  confidence  and 
importunes  her  to  sexual  intercourse  with  him,  and  she, 
through  her  love  for  and  confidence  in  him,  yields  to  his 
solicitations,  this  is  seduction.    Smith  vs.  Yaryan^  69  Ind.,  445. 

Though  the  jury  may  believe,  from  the  evidence,  beyond 
a  reasonable  doubt,  that  the  defendant  had  sexual  intercourse 
with  the  complaining  witness,  still,  if  the  jury  further  believe, 
from  the  evidence,  that  he  had  such  intercourse  by  force  and 
against  the  will  of  the  said  A.  B.,  this  would  not  constitute 
the  crime  of  seduction,  and  the  jury  should  acquit  the  defend- 
ant of  that  charge.     State  vs.  Vewis,  48  la.,  578. 


INDEX 


[References  are  to  pages.] 

Acceptance  of  Work — Work,  Labor  and  Services 615 

Accessory  Defined 711 

Accessories — See  Aiders  and  Ahhettnrs 655 

Accidents. 

Carrier  not  an  Insurer  against 116 

Inevitable  Accident,  what 89 

Injuries  from 108 

Injuries  from  Accident  and  Negligence 358,  366 

Accomplice. 

Testimony  of 722 

Inducements  held  out  to,  considered 722 

Induced  to  Become  by  Promises 723 

To  be  Acted  upon  with  Caution 643,  722 

Account  Stated. 

Need  not  be  in  Express  Terms 51 

Settlement  Presumed  to  Include  all  Items 52 

Can  only  be  Opened  for  Fraud  or  Mistake 52 

If  Rendered  and  not  Objected  to,  is  Admitted 63 

May  be  Opened  for  Fraud  or  Mistake 54 

Receipt  may  be  Contradicted 54 

Receipt  Prima  Facie  Correct 54 

Must  be  Agreed  to 61 

Running  Accounts 53 

Settlement  and  Receipt  Obtained  by  Duress 55,  56 

Act  op  God. 

What  is  Meant  by 89 

What  is  not 89 

Common  Carrier  not  Liable  for  Loss  occasioned  by,  etc 88 

Carrier  must  use  Reasonable  Care  to  avoid  Injury  by 90 

Adverse  Possession 186 

Admissions 44 

Verbal,  How  Weighed 44 

All  to  be  Considered  toget  her 46 

Jury  may  Believe  Part  and  Reject  Part 44,  45 

In  Affidavit  for  Continuance 47,  48 

When  Party  not  Estopped  by 46 

Affidavit 47 

For  Continuance 47,  48 

(781) 


782  INDEX. 

Agency 57 

Scope  of  General  Instructions 57 

Departure  from  Business  of  Principal 57 

Agency  must  be  Shown,  When 58 

Agency  Presumed  to  Continue,  When 58 

Warranty  by  Agent 59 

Public  Officer  a  Special  Agent 59 

When  Principal  Liable  for  Torts 60 

Goods  Furnished  Wife  or  Minor  Child 60,  61 

Wife  living  Sepani  e  without  her  Fault 62 

Goods  Furnished  after  Desertion  by  Wife 61,  62,  03 

Agent  Personally  Liable,  When 66 

Notice  to  Agent,  When  Binding 66 

Good  Faith  Required  of  Agent 66 

Corporations  only  Act  by  Agent 67 

Individual  Members  of  Board  Cannot  Act 68 

Hatification  of  Agent's  Acts 63 

Principal  must  Dissent  from  Unauthorized  Acts 63 

Must  be  with  Full  Knowledge 64,  65 

Cannot  be  as  to  Part  Only 65 

Corporations  may  Ratify,  etc 67 

Permitting  One  to  Hold  Himself  Out,  etc 65 

Aiders,  Abettors,  Etc 

In  Trespass 525 

In  Criminal  Cases. 

Accessory  Defined 654 

Aiding,  Advising,  etc..  May  be  by  Words  or  Acts 655 

Need  not  be  by  Express  Agreement 671 

Aiding  or  Abetting  Assault 656 

Aiding  or  Abetting  Murder 656 

Aiding  or  Abetting  Bursrlary 657 

Advising  and  Encouraging,  not  being  Present 657 

Present,  not  Aiding  or  Abetting 657 

One  or  More  May  be  Found  Guilty 658 

Alibi. 

Legitimate  Defense 648 

Need  not  be  Proved  beyond  a  Reasonable  Doubt 648 

Burden  of  Proving 648 

Doubt  as  to  Defendant  or  Somebody  Else 649 

Altering  Written  Instruments 69 

Material  Alteration  Renders  Void 69,  70 

Adopted  by  Maker 72 

If  not  Material  does  not  Render  Void 70,  71 

Presumed  to  be  Made  after  Execution 72 

No  Presumption  of  Law  as  to  when  Made 72,  73 

By  Stranger 71 

By  Party  not  Authorized 71,  72 


INDEX.  783 

ANAHcnisTs'  Case  Tnrtkuctions 7C9 

Right  to  Arm  for  Defense,  etc 725 

"      "  Repel  Attack 726 

Animals 

Trespass  by  Domestic  Animals — Tresi)ass 548 

Application  op  Payments 74 

Debtor  may  direct,  if  he  does  not,  Creditor  may 74 

When  neither  Debtor  nor  Creditor  makes  an  Application,  then 

the  Law  w  il  1  make  it 75 

Creditor  has  no  Right  to  Disregard  Directions  of  the  Debtor. .  74 

If  Debtor  makes  Application,  Creditor  can  not  Cliange 74 

The  Law  will  apply  ou  the  Debt  first  due 75 

Assault. 

Af^sault  Defined 659 

With  Intent  to  Commit  Rape 767 

Damages  for  Assault 827 

With  I)itent  to  Commit  Miuder. 

Assault  Defined 6")9 

Must  be  such  as  would  be  Murder  if  Death  had  ensued 6r,0 

Doubt  as  to  Intent 660 

Presume  to  Intend  Natural  Consequences,  etc 660 

Reckless  or  Wanton  In j iiry 660 

Facts  showing  Deliberation 661 

Intent  may  be  Proved  by  Circumstances 662 

Intent  must  Appear 660 

Intent  to  Kill  must  exist 661 

Blow  in  Heat  of  Passion 663 

Incapable  of  forming  Intent  from  Drunkenness 663 

Must  be  Proved  beyond  Reasonable  Doubt 664 

Every  Material  Allegation  must  be  Proved 634 

Verdict  may  be  for  Assault  with  Deadly  Weapon 664 

May  be  found  guilty  of  an  Assault  with  Intent  to  Commit  man- 
slaughter    664 

With  Deadly  Weajwu,  etc. 

Assault  with  a  Knife  Charged 665 

Proof  of  Instrument  of  the  same  kind 665 

What  C«nstitutes  the  Crime 665 

What  Necessary  to  Prove 666 

No  Crime  without  Intent 666 

Presumption  of  Intent  may  be  Rebutted 667 

Deadly  Weapon  Defined 667 

Assignee  op  Commercial  Paper — Negotiable  Instruments 431 

Attacitment — Plea  in  A hatement  to  Affidavit 76 

Non-resident  of  the  State 76 

About  to  Depart  from  the  State 76,  77 

What  is  not  a  Departing  from  the  State 77 

About  to  Depart  from  the  State — how  proved 77.  78 

Intent  to  Depart — how  shown 78,  79 


78i  INDEX. 

Attachment — Confhmed. 

On  the  Ground  of  Fraud 79 

The  Fraud  must  be  Proven  by  a  Preponderance  of  the  Evidence.  233 

Good  Faith  Presumed 79 

Attempt  to  Commit  an  Offense 775 

Attorney. 

Statement  of,  to  Jury 49,  50 

As  Witness 50 

Statements  of  Prosecuting  Attorney 724 

Baggage— Carriers  of. 

Bigamy 775 

Bills  op  Lading. 

Implies  what  Contract 100 

Not  Conclusive 100 

Board  of  Trade  Contracts. 

Contracts  Legal IGO,  135 

Contracts  Illegal 129 

Margins 123 

See  Commission  Merchants 120 

Bonds. 

Signing  in  Blank 80,  81,  82 

Delivery 82 

Building. 

When  Personal  Property 485 

Building  Contracts. 

Certificate  of  Architect 164,  165 

Burden  op  Proof. 

Is  on  the  Party  holding  the  A  fErmative 42,  43 

Breach  of  Contract 154 

In  Divorce 177 

In  Ejectment 180 

Statute  of  Limitation 191 

In  Forcible  Entry,  etc 207 

Under  Dram  Shop  Act 273 

In  Malicious  Prosecution 299 

In  Malpractice 308 

Failure  or  Want  of  Consideration 448 

Contesting  Will 592 

In  Criminal  Cases 718 

Is  on  the  People 719 

Burglary. 

What  Constitutes 668 

Prima  Facie  case  of 668 

Intent  Charged  must  be  Proved 669 

What  Constitutes  a  Breaking 669 

What  Constitutes  an  Entry , 669 

May  be  found  Guilty  of  Larceny 670 


INDEX.  785 

BuRGL  AKY—  Con  fin  tied. 

Proof  of  Identity. 

Must  be  proved  beyond  Reasonable  Doubt 735 

Care  and  Diligence. 

Ordinary  Care  and  Diliofence,  what 96 

Reasonable  Care  and  Caution,  what 367 

Must  be  Proportionate  to  Known  Danger 367 

Reasonable  Care  Required 347 

Plaintiff  mxist  exercise  Reasonable  Care 34 

Cap^iers — Common  Carriers 87,  119 

Character. 

Good,  Presumed 651 

Proof  of  Good 651 

Former  Good  Character 651 

Omission  to  Prove 651 

Effect  of 651 

Always  Proper 652 

Guilt  notwithstanding 653 

Chattel  Mortgage — Frauds  against  Creditors 224 

Children. 

Father  Entitled  to  Earnings  of  Minor 316 

Contributory  Negligence  of 415 

Goods  furnished  Minor  Child 60 

Father  may  Emancipate  Minor  Child 627 

Minor  can  Disaffirm  Contract,  when 628 

CiRCtTMSTANTiAT-  EVIDENCE— jE'<;?cZence 638 

Commission  Merchants.  «» 

Are  Agents 120 

Good  Faith  Required 120 

Degree  of  Care  Required 121 

May  Conform  to  Rules  of  the  Market 121 ,  122, 123 

Must  Conform  to  Rules  and  Usages 123 

Margins 123,  124 

Factors'  Lien 124 

Right  to  Sell  Without  Permission 125 

When  may  not  Sell 125 

Selling  without  Orders 126 

Account  Si  ated 126 

Presumed  to  Conform  to  Custom  and  Usage 127 

Real  Estate  Brokers 127 

Contracts  Illegal 129, 130 

Contracts  Legal 130,  131 

Common  Carriers — Of  Passengers  and  Baggage Ill 

Common  Carrier  Defined Ill 

Injury  prima  facie  Evidence  of  Negligence Ill,  112 

Degree  of  Care  required  of  the  Carrier 113, 114 

50 


786  INDEX. 

Common  Carriers — ContUrved. 

Degree  of  Care  required  of  the  Passenger 115 

Passenger  takes  all  Risks  necessarily  incident  to  the   Mode   of 

Conveyance 117 

Jumping  from  the  Cars  not  Negligence,  when 115 

Jumping  from  the  Cars  Negligence,  when 116 

Not  an  Insurer  against  Accident 116 

Liability  for  Baggage 117 

If  a  Trunk  contains  Articles  of  special  value  Carrier  should  be 

Notified 118 

Not  bound  to  Inquire  as  to  the  Contents  of  a  Trunk 118 

Placing  Valuables  in  the  hands  of,  as  Baggage,  is  a  Fraud 118,  119 

Liability  for  Baggage  terminates,  when 119 

Of  Goods 87 

Who  is  a  Common  Carrier 88 

Liability  of  Common  Carrier 88 

Law  of  the  State  where  the  Goods  are  delivered,  governs 88 

Liable  for  all  Loss  except  by  Act  of  God,  etc 88,  89 

What  is  meant  by  Act  of  God 89 

What  is  not  an  Act  of  God 89 

Inevitable  Accident,  what 89 

Must  use  B.easonable  Care  to  Avoid  Injury  by  Act  of  God 90 

Written  Receipt  not  required 90 

Line  Made  up  of  Several  Carriers 90,  91 

When  liability  of  Carrier  commences 92 

Liability  Continues  how  long 92,  93 

If  Goods  are  not  Delivered  to  Consignee  they  must  be  Stored..  94 
Railroad  Companies  are  not  Bound  Jo  Deliver   to   Consignee 

Personally 95 

Duty  and  Liability  of  Express  Companies 95 

Care  Required  of  a  Warehouseman 96 

What  is  Ordinai-y  Diligence  and  Care 96 

Must  Carry  within  a  Reasonable  Time 97 

First  Carrier  Liable  for  Loss 91 

Shipping  Perishable  Goods 97,  98.  99 

Receipt  prima  facie  Evidence  of  Goods  in  good  order 99,  100 

What  Contract  Bill  of  Lading  Implies 100 

Bill  of  Lading  not  Conclusive  of  Condition 100 

Carrier  does  not  Insure  Condition  of 101 

Can  only  restrict  Common  Law  Liabilities  by  contract 101 

Legal  duty  of.  Imposed  by  Law 101 

Exemption  Clause  in  Receipt  not  Binding 102 

Exemption  Clause  Binding  if  agreed  to 102 

Shipper  will  be  Presumed  to  Agree  to  Exemption  Clause,  when  102 

Burden  on  Carrier  to  Show  Loss  within  Exemption 103 

Liability  not  Limited  by  Notice 103 

Receipt  Evidence  of  Exemption 103 

Must  Exercise  Reasonable  Care  to  prevent  Loss  within  Exemp- 
tion    104 


INDEX.  787 

Common  Carriers—  Continued. 

Shipper  Bound  by  Receipt,  when 104 

Shipper  not  Bound  by  Notice  Printed  on  Receipt 104 

Cannot  Restrict  Liability  arising  from  Negligence 105,  lOG 

Burden  of  Proof,  Damaged  Goods 106 

Of  Live  Stock 107 

Duties  and  Liabilities  of 1 07 

What  care  Required  of 107,  108 

Injuries  without  Carrier's  Fault 108 

Care  Required  of  Carriers  of  Hogs 109 

Degree  of  Care  Required  to  Avoid  Delay 109 

Suit  by  Carrier  for  Freight  and  Charges 109,  110 

Carrier's  Lien 110 

Composition  Agreement. 

Party  not  Bound  by  Offer  to  Compromise 47,  631 

Concealing  Stolen  Property 776 

Condemnation  op  Land 136 

Measure  of  Damages , ^.  136 

Compensation  Irrespective  of  Benefits 137 

Damages  not  Allowed  for  Part  not  Taken 137 

Compensation  Covers  What  Injuries 138,  139 

Appropriation  of  Streets 141 

Condonation — Divorce 177 

Confessions  in  Criminal  Cases— Evidence 641 

Consideration— CoH^rac^ 149 

Conspiracy. 

Defined 671 

Usually  Proved  by  Circumstances 671,  712,  713,  714 

Proof  of  Formal  Agreement  not  Necessary 671 

Sufficient  Proof  of  Common  Design 672 

Who  are  Deemed  Guilty 672 

No  Overt  Act  Necessary 672 

Common  Design  or  Purpose  Must  be  Proved 673 

Conspiracy  to  Commit  an  Assault 673 

Participants  after  Conspiracy  is  Formed 672 

Conspiracy  to  Cheat,  etc 674 

"           "    Overthrow  the  Law 711 

"           "    Excite  People  to  Violence 712 

Offense  Committed  when  Parties  Further  the  Original  Plan..  714 

Contesting  Wills— TFiZ/s 589 

Counterfeiting 776 

Continuance. 

Affidavit  for 47 

Contracts 145 

Capacity  to  Contract 146 

Drunkenness  as  a  Ground  of  Avoidance 146 


788  INDEX. 

Contracts — Continued. 

Fraud  and  Circumvention  in  Procuring  Execution  of 147 

Signature  Procured  by  Fraud 147 

What  Constitutes 148 

The  Minds  of  the  Parties  must  Meet 148 

Need  not  be  any  Formal  Acceptance 148 

Of  Sale,  what  is 148 

Consideration  Necessary 148 

What  is  Consideration 149 

One  Promise  is  a  Good  Consideration  for  Another  Promise ....  149 

New  Promise  to  Perform  Legal  Obligation 149 

When  Promise  to  Receive  Part  Payment  is  without  Considera- 
tion   149 

Partial  Payment  by  Stranger,  etc 150 

Construction  of 150 

Performed  as  Modii5ed  by  Parol 150 

Right  to  Rescind  for  Fraud 151 

Right  to  Rescind  for  Mistake  of  Fact 151 

Notice  of  Intention  to  Rescind  must  be  Given 152 

Rescinding  by  Mutual  Consent 152 

Rescinding  for  Non- performance 152 

When  may  Recover  for  Partial  Performance 153 

Hardship  will  not  Excuse  Non-performance 154 

Act  of  God  will  Excuse,  what  is 154 

Burden  of  Proving  Breach  of 154 

Made  on  Sunday  are  Valid 154 

Made  on  Sunday  not  Void  but  Voidable 154,  155 

Subscription  Paper 158,  159 

For  Labor,  Presumed  to  Continue,  when 629 

Custom  and  Usage  enter  into 163 

BiiUding  Contract. 

Certificate  of  Architect 164 

Marriage. 

How  Proved 155 

No  Actual  Promise  need  be  Shown 155,  156 

When  Offer  to  Perform  is  not  Necessary 158 

Unchastity  no  Defense,  when 156 

Desirability  of  Party  Should  Not  be  Considered  by  Jury 156 

Breach  of  Promise,  how  Proved 156 

Promise  Obtained  by  Fraud 157 

Composition  Agreement 159 

Good  Faith  Required 159 

Secret  Agreement  Renders  Void  as  to  others 160 

Sale  of  Personal  Froperty. 

Future  Delivery 160 

No  Demand  for  Delivery  Need  be  Made,  when 161 

Only  Act  of  God,  etc.,  will  Excuse  Non-performance 162 

Plaintiff  Must  Show  Readiness  to  Perform 162 

Measure  of  Damages 162, 163 


INDEX.  789 

Co^TUACTS—Confiimcd. 

Tender  of  Perforiuance 163 

What  Excuses  Performance 162 

Payment  and  Delivery  Concurrent  Acts 163 

Option  Contracts. 

Option  Contract  Defined 129 

Option  Contract  is  Prohibited  by  Law 129 

Custom  and  Usage  Enter  into  and  Form  a  Part  of,  when 163,  127 

Corporations, 

Suit  against,  How  to  be  Tried 44 

Witnesses  for.  How  Regarded 44 

Counsel — Statements  of 49 

Court. 

Remarks  by,  in  Presence  of  Jury •.  13 

Credibility  of  Witnesses — Witness 30 

Criminal  Cases. 

Rule  of  Evidence  in 720 

Where  Evidence  Fails  to  Establish  Guilt 720 

Mere  Probabilities  not  Sufficient 721 

Personal  Opinion  of  Jurors 721 

Custom  and  Usage — Commission  Merchants 120 

Enter  Into  and  Form  Part  of  a  Contract 163 

To  be  Binding  Must  be  Generally  Known  and  Established. . ..  163 

Factors  are  Presumed  to  Conform  to 127 

Damages — Measure  of  Damages 342 

Deadly  Weapon. 

Defined 667 

Debt  on  Bond 80 

Presumption  from  P  oof  of  Signature 80 

Sureties  Bound  by  Action  of  their  Principal 81 

Extent  of  Agents'  Authority 83 

What  is  Proved  by  the  Record  in  Replevin  Suit 83,  84 

Dedication — Highivays 248 

Deed. 

Takes  Effect  from  Time  of  Delivery 85 

What  Constitutes  Delivery 85 

No  Particular  Form  or  Ceremony  Necessary 85,  86 

Need  not  be  Delivered  to  the  Grantee  Personally 86 

Must  be  Both  Delivered  and  Accepted 86 

Not  Necessary  to  Transfer  Adverse  Possession 189 

Title  to  Real  Estate  can  only  be  Conveyed  by 181 

Priority  of 182 

By  Way  of  Mortgage 183 

Defendant  in  Criminal  Cases. 

Omission  to  Testify 723 

Rule  as  to  Credibility 714 

Jury  have  no  Right  to  Disregard 724 


790  INDEX. 

Defexdakt  IX  CniMTNAL  Cases — Continued. 

Verbal  Admissions  of 724 

Anarctiy,  Dangerous  Views 725 

Burden  not  on  Defendant 7il6 

Delivery. 

Of  Official  Bond 86 

Of  Deeds 85 

Demand  and  Refusal. 

Demand  Need  not  be  Made,  when 657,  477 

What  Constitutes 430,  563 

No  Particular  Form  of  Words  Necessary 480,  563 

Must  be  made  by  Party  Authorized 563 

Demand  by  Agent 564 

GrourwJ  of  Refusal  must  be  Specified 564 

What  Essential  to  a  Demand 480 

Evidence  of  Conversion 556 

When  Demand  not  Necessary  in  Trover 557 

Departing  from;  the  State — Attachment 76,  77 

Desertion — Divorce 166 

DiSTRAiNtNQ  ^TOCK— Replevin 489 

Divorce. 

Residence  and  Desertion 166 

Domicile  of  Husband  is  that  of  the  Wife 166 

Husband  has  Right  to  Select  the  Residence 167 

Abusive  Language  Provocation  for  Wife  leaving 167 

When  Desertion  the  only  Issue 167 

Separation  by  Mutual  Consent 167 

Absence  Alone  not  Proof  of  Desertion 167 

Desire  for  Reconciliation  after  Separation  by  Mutual  Consent.  168 

Refusal  to  Become  Reconciled,  Desertion,  when 168 

When  Refusal  to  Become  Reconciled  not  Desertion 168 

Adultery  as  a  Ground  for 170 

Adultery  Must  be  Proved 170 

Extreme  and  Repeated  Cruelty  as  a  Ground  for 171 

Drunkenness  and  Threats 171 

Personal  Violence  Must  be  Shown 172 

In  Some  States  not  Necessary 172 

Acts  of  Cruelty  Must  be  Repeated 173 

Acts  of  Cruelty  Must  be  Recent , 173 

Reason  to  Fear  Cruelty  Must  Exist  When  Bill  is  Filed 174 

Acts  of  Cruelty  Provoked  by  Complainant 175 

Cruelty  Provoked  by  Refusal  to  Cohabit 176 

Hysteria 176 

Laboring:  under  a  Delusion 177 

Burden  of  Proof 177 

Condonation 177,  173 

Desertion. 

Grounds  of,  by  Wife 163 


INDEX.  791 

DivOTfCE — Continued. 

Adultery,  Excuse  for 169 

Cruelty  as  an  Excuse  for 169 

Acts  of  Cruelty  must  be  Apprehended  at  the  Tiuie 170 

Doubt. 

Reasonable,  Defined 645 

As  to  Which  of  Two  or  More  Persons  is  Guilty 649 

Drunkenness. 

Defined 738 

As  Affecting  Capacity  to  Contract 146 

As  a  Ground  of  Avoidance  of  a  Contract 146 

Shown  in  Mitigation  in  Slander 340 

No  Justification  in  Trespass 529 

As  Affecting  Testamentary  Capacity 597 

Insanity  Produced  by  Drunkenness 597 

As  Affecting  Intent  in  Criminal  Cases 687 

No  Excuse  for  Crime 700 

Duress — Negotiable  Instruments 469 

Ejectment. 

Only  Legal  Titles  Involved 180 

One  in  Possession  of  Real  Estate  Presumed  to  be  Owner 180 

Paper  Title  shown  by  Plaintiff 180 

Right  to  Possession  must  be  Shown 180 

Title  can  only  be  Conveyed  by  Deed 181 

Title  Deduced  from  a  Common  Source 181 

Both  Parties  Claim  under  same  Person 181 

Priority  of  Deeds 182 

Visible  Monuments  Control  Courses  and  Distance 182 

Boundary  on  Watercourse 182 

Boundaries  a  Question  of  Fact  for  the  Jury 183 

Plaintift"'s  Deed  by  way  of  Mortgage 183 

Possession  ^jn»«(7/afie  Evidence  of  Title 184 

Defendant  need  not  show  by  what  Right  he  holds  Possession 

until  Plaintiff  has  shown  Title 184 

First  Possessor  has  the  Better  Title 185 

Deed  from  Party  in  Possession  Claiming  Title 185 

Adverse  Possession  in  Ejectment. 

Title  by  Prescription,  without  color 185 

Must  be  Hostile  in  its  Inception 186 

Permissive  Possession  not  Hostile 186 

Possession  Subservient  to  the  True  Owner 187 

Presumed  to  be  under  Legal  Title 187 

Paper  Title  not  Necessary 188 

Possession  by  Successive  Holders 188 

Deed  not  Necei^sary  to  Transfer  Possession 189 

Temporary  Line  Fence 189 

Line  Fence  Agreed  upon 190 

Agreed  upon  by  Mistake 190 


792  INDEX. 

Ejectment — Con  finned. 

Possession  under  Colc'r  of  Title 191 

Burden  of  Proof— Limitations 191 

What  must  be  Shown  under  Limitation  Law 192 

What  Constitutes  Possession 193 

Possession  not  under  Color  of  Title  194 

Inclosure  by  Natural  Objects 194 

Payment  of  Taxes,  Seven  Years — llrinois 191 

Possession  of  Woodlands 193 

Possession  According  to  Boundaries  in  Title  Papers 195 

Notice  by  Possession 196 

Embezzlemi  kt 75 

See  Larceny 747 

Eminent  Domain 136 

Estoppel. 

General  Rule 197 

Intention  Not  Essential 198 

Knowingly   Permitting   Another   to   Deal   with   Property   as 

Owner 1 98 

Representations  by  the  Acts  of  a  Party 199 

Representations  must  be  Acted  on 1 99 

Must  be  a  Fraudulent  Purpose  or  Result 199 

Injury  Must  be  Shown 200 

Holding  Oneself  out  as  Partner 467 

Permitting  One  to  Hold  Himself  out  as  Agent 650 

Evidence. 

Preponderance  of,  how  Determined 38,  39,  40 

Negative,  What  is  Not 41, 42 

Preponderance  of,   Sutficient  in  Suit  for  Sale  of  Intoxicating 

Liquors 276 

Weight  of,  a  Question  of  Fact  for  the  Jury 31 

Weight  of — Degree  of  Proof  in  Cr'nninal  Cases. 

Presumption  in  Favor  of  Innocence 634 

Every  Allegation  Must  be  Proved  beyond  a  Reasonable  Doubt  634 

Prisoner  Entitled  to  Every  Reasonable  Hypothesis 634 

Probability  of  Guilt  not  Sufficient 635 

Preponderance  of,  not  Sufficient 635 

Jury  Should  Consider  all  the  Evidence '. ..  635 

The  Guilty  Ninety-Nine 636 

Better  that  many  Guilty  Persons  Escape,  etc 636 

Jury  Should  Endeavor  to  Reconcile 636,  723 

Want  of  Motive 636 

Accused  Need  Not  Testify 636 

Failure  to  Testify  no  Presumption  against,  etc 636 

Testimony  of  Accused  to  be  Weighed  by  the  Jury 637 

The  Defendant  as  a  Witness 637 

Testimony  of,  should  be  Considered 638 

Circumstantial. 

Competent,  etc 638 


INDEX.  793 

EYiDKncK—Confiiiued. 

Defined 639 

Must  all  be  Consistert  with  Guilt,  etc 6:19 

Must  all  be  Inconsistent  with  Innocence 639 

Circumstantial  Evidence  Defined 714 

What  will  Justify  Inference  of  Guilt  from 722 

When  Conviction  is  Sought  upon 724 

Degree  of  Certainty  Required  from 640 

One  Fact  Inconsistent  with  Guilt 640 

Direct  Evidence  Not  Required 641 

Must  Exclude  every  Reasonable  Hypothesis  of  Innocence 640 

Admissions  and  Confessions  in  Criminal  Cases. 

Must  all  be  Taken  Together 641 

Must  be  Treated  Like  Other  Evidence 641 

Out  of  Court  be  Received  with  Caution 642 

Effect  when  Corroborated. 642 

When  Sufiicient  to  Convict 642 

Testimony  of  Accomplice  to  be  Received  with  Caution 643 

Fabricated  Testimony  Explained 643 

Contradictory  and  Inconsistent  Statements 644 

One  Witness  Sufficient,  when 644 

Crime  Charged  must  be  Proved 644 

Statement  of  Prosecuting  Attorney  not  Based  on  Evidence.. ..  644 

Reasonable  Doubt  Defined 645 

In  Circumstantial  fjvidcnce 647 

In  the  Anarchists'  Case 715 

Rule  of  Reasonable  Doubt  does  not  Extend  to  Each  Link  in  the 

Chain  of  Testimony 647 

Duty  of  Jury  to  Determine  Doubts 646 

Attempt  to  Escape,  how  Considered 647 

Execution. 

Conclusive,  when 480 

Indorsement  Conclusive,  when 480 

Justification  under 481 

Interest  of  Joint  Owner  Taken  on 481 

Lien  of  by  Statute 482 

False  Imprisonment —  Tresjmss 530 

False  Pretenses 776 

Fences. 

Line  Fence  Agreed  upon 190 

Inclosed  by  Natural  Objects 194 

Railroad  Track  to  be  Fenced 387 

What  a  Sufficient  Fence — 548 

Owner  Bound  to  Fence  Against  What — -See  Trespass 550 

Forcible  Entry  and  Detainer 

Title  not  Involved 201 

Entry  by  Force  not  Necessary 202 

Entry,  by  Force  or  Threats  Essential 202 


794  INDEX. 

Forcible  Entky  and  Detainer — Continued. 

The  Real  Question  in  Issue 203 

Possession  by  Tenant 204 

What  Constitutes  Possession 205 

Possession  Must  be  Actual  and  Real 205 

What  not  Possession , 206 

Burden  of  Proof 207 

Forgery 777 

Fraud. 

Is  Never  Presumed  without  Proof 232 

Right  to  Rescind  Contract  for 151 

Of  Partner  Binds  the  Firm,  when 471 

Against  Creditors. 

Sale  with  Intent  to  Defraud  Creditor^ ' 212 

Fraudulent,  Though   for  a  Good  Consideration,  when ....  212 

Must  be  a  Change  of  Possession 212 

Retaining  Possession  after  Sale,  Fraud  jyer  se 213 

Must  be  Oatward  Visible  Signs  of  Change  of  Possession 213,  214 

Priority  of  Possession  under  Execution 215 

Retaining  Possession — Presumptive  Evidence  of  Fraud 215 

Good  Faith  a  Question  for  the  Jury,  when 216 

Possession  Evidence  of  Ownership 216 

Possession  not  Evidence  of  Ownership,  when 217 

Only  Such  Change  Required  as  Can  Reasonably  be  Made 217 

Property  in  Possession  of  Third  Person 218 

Symbolical  Delivery 218 

Possession  may  be  by  Agent 218 

Possession  of  Growing  Crops 219 

Temporary  Possession  of  Vendee 219 

Temporary  Possession  of  Vendor 483 

Person  Indebted  may  Sell  his  Property 219 

Sale  to  Relatives  not  Necessarily  Fraudulent 220 

Debtor  may  Transfer  Property  in  Payment  of  Debts 220 

Sale  on  Credit 221 

Debtor  may  Prefer  Creditor 221 

Preferring  Wife  as  Creditor 222 

Purchaser  must  be  Chargeable  with  Notice  of  Fraud 222 

Creditor  not  Affected  by  Knowledge,  when 223 

Wiiat  is  Sufficient  Notice  of  Fraudulent  Intent 223 

Honest  Intent  Presumed 223 

Chattel  Mortgages  as  against  Judgment  Creditors, 

Good  between  the  Parties  without  Recording 224 

As  to  Creditors  must  be  Acknowledged  and  Recorded 224 

Mortgagee  must  see  to  Statutory  Requirements 225 

Acknowledgment  and  Recording,  how  Proved 225 

Mortgagee  must  Take  Possession,  when 225 

Fraudulent  Mortgage  Void 225 

Note  for  More  than  Amount  Due 226 


INDEX. 


795 


Fraud — Conthmed. 

Mortgage  of  Stock  of  Goods 226 

Both  Parties  must  Intend  the  Fraud 227 

Good  Faith,  how  Proved 227 

Intent  to  Defraud  must  Exist  at  the  Time 227 

Subsequent  Acts  will  not  Render  Void 227 

Sales  by  Mortgagor 228 

Mortgage  to  Secure  Future  Advances 228 

Possession  by  Mortgagee 229 

Possession  by  Mortgagor  after  Default 229 

Mortgage  to  Secure  Contingent  Liability 229 

Taking  Possession  before  Debt  Due 230 

Sale  by  Mortgagor  for  Benefit  of  Mortgagee 230 

Fraud  and  Circumvention  in  Procuring  Contract 

Fraud  and  Circumvention  in  Procuring  ^ote—See  Negotiable 

Instruments 451 

Fraud,  Fat,se  Representations,  etc. 

False  Representations 231 

Proof  of  Fraud 232 

Never  to  be  Presumed 232 

Degree  of  Proof  Required 233 

Representations  must  be  of  the  Past  or  Present 233 

Must  be  Designed  to  Injure 233 

Injury  must  be  shown 233 

Scienter  must  Appear  from  the  Evidence 234 

Expression  of  Opinion 234 

Each  may  Exalt  Value  of  his  own  Property 235 

All  Statements  as  to  Value  of  Property 235 

Representation  as  to  the  Law 235 

Mere  Silence  is  not  Fraud,  when 235 

Purchaser  Knowing  Himself  Insolvent 236 

Purchaser  must  Exercise  Reasonable  Care 237 

Purchase  with  Intent  not  to  Pay 236 

Drawing  Check  without  Funds 236 

Sale  of  Personal  Property— Concealed  Defects 236 

Contract  Procured  by  Fraud 237 

Stating  as  True  when  a  Party  has  no  Reason  for  Belief 238 

Suit  for  Fraud— What  must  be  Proved 239 

All  the  Representations  need  not  be  Proved 239 

Action  not  on  the  Contract 240 

Co-Defendant  not  Guilty 240 

Sales  Procured  by  Fraud 240 

Right  to  Rescind 241 

Sales  not  Void  but  Voidable 241 

Contract  may  be  Ratified,  How 241 

What  is  Ratification 242 

Innocent  Purchaser  from  Fraudulent  Vendee 242 

Purchaser  without  Notice 243 

Goods  Transferred  in  Payment  of  Debt 243 


796  INDEX. 

Fraud,  False  Represkxtations,  etc. — Continued. 

Attaching  or  Execution  Creditor 244 

Purchaser  must  Exercise  Reasonable  Caution 244 

Every  False  Atfirmation  does  not  Amount  to  Fraud 544 

A  Party  only  Bound  to  use  Reasonable  Caution 245 

Shipping  Valuables  as  Baggage  is  a  Fraud  on  the  Carrier 118 

Must  be  Discovered  Before  the  Statute  of  Limitations  begins  to 

Run 293 

Good  Faith  Presumed 79 

Growing  Crops. 

Possession  of 219 

Title  in 288 

When  Personal  Property 484 

Levy  on  and  Taking  Possession 0  . . . .  484 

Officer  Selling 540 

Guarantor — Negotiable  Instrunients 434 

Habitual  Criminals 778 

Highways. 

How  Created 246 

Presumption  from  Laying  out  and  Working 247 

Existence  of,  how  Proved 247 

Condemnation,  how  Proved 247 

Actual  Location  must  Prevail 247 

Monuments  Control  Courses  and  Distances 247 

What  is  Prima  Facie  Evidence  of  Location 248 

Collision  on 359 

Dedication. 

What  Constitutes '. 248 

What  is  Meant  by 248 

IVIustbeMade  by  Owner 249 

No  Particular  Ceremony  Required 249 

No  Specific  Time  Required 249 

Must  be  Accepted 249 

Owner  must  Intend  to  Dedicate 250 

Binding  on  the  Owner  and  all  Claiming  under  Him 250 

By  Sale  of  Lots  Bounded  on  Streets 251 

Prescription. 

What  is 25 1 

Travel  must  be   Confined   to  Particular  Route 252 

Appropriation  of. 141,  144 

Highway  Crossing — Negligence   by  Railroad  Companies 401 

Homicide. 

Generally 677 

Murder  Defined 677 

Express  Malice  Defined 678 

Implied  Malice  Defined 678 

Presumption  from  Killing 678 

Voluntary  and  Involuntary 678 


INDEX.  797 

HosncTDE — Conthnied. 

Involuntary  Killing,  in  the  Commission  of  a  Crime 678 

Blow  with  a  Deadly  Weapon 679 

Blow  with  a  Deadly  Weapon,  no  Considerable  Provocation. . .  680 

Words  no  SufBcient  Provocation 681 

Party  Intends  Natural  Results  of  his  Acts 695 

Cause  of  the  Death  Must  be  Proved 681 

Wound  not  Necessarily  Fatal 681,  682 

Murder  in  the  First  Degree 688 

Murder  in  the  Second  Degree 683 

Elements  of  Murder  in  First  Degree 684 

Killing  Willfully,  etc., 684 

No  Length  of  Deliberation  Required 685 

Premeditated  Design 686 

Premediated  Design,  Mutual  Combat 687 

Intoxication  Affecting  Intent 687,  700 

Drunkenness  no  Excuse  for  Crime 687,  700 

Murder  by  Poisoning 688 

Death  Hastened  by  Poisoning 689 

How  Proved  by  Circumstantial  Evidence 689 

Must  Exclude  every  Reasonable  Hypothesis,  etc 689 

Doubt  as  to  which  of  Two  or  More 689,  690 

Circumstances  Pointing  Strongly  to  some  Other  Person 689 

"                   "        toSuicide 690 

ManslauffJtter 

Words  of  Provocation  will  not  Reduce  Murder  to  Manslaughter  690 

Verdict  may  be  for  Manslaughter 691.  692 

Verdict  may  be  for  Lesser  Crime 691 

Voluntary  and  Involuntary  Defined 692,  693 

Malice. 

Defined 694 

Presumed,  when 694 

Aforethought 694 

Implied,  when 695 

Malice  Denotes  any  Wicked  or  Corrupt  Motive 694 

Intent,  How  Proved 695 

Insanity. 

Test  of  Criminal  Responsibility 696 

When  not  Responsible 677 

Different  Rules  as  to  Burden  of  Proof 697 

Reasonable  Doubt  as  to  Sanity 698 

Sanity  Presumed 698 

Impulse  of  Passion  no  Defense 698 

Act  must  be  in  Consequence  of,  etc 699 

Partial '. 699 

Must  be  the  Efficient  Cause 699 

Test  of ; 699 

Drunkenness 7C0.  701,702 

Self-Defense. 

Danger  Need  Not  be  Real 703 


798  INDEX. 

Homicide — Conthmed. 

Force  may  be  Resisted  by  Force 705 

Assailant  Retiring'  from  the  Fight 705 

Defense  of  Habitation 706 

Attack  Provoked  by  Defendant 787 

Danger  Must  be  Reasonably  Apparent 703,  707 

Reasonable  Doubt  as  to  Apparent  Danger 707,  703 

HrrsBAND  AND  Wipe — Married  Women 310 

Identity,  Proof  of 650 

Indictment. 

Only  a  Mere  Accusation 719 

Impeachment  op  Witness 33 

Innocent  Purchaser. 

From  Fraudulent  Vendee 242 

Withouf.  Notice 242 

Taking  Note  as  Security 430 

Taking  Note  in  Payment 430 

Assignee  with  Notice  from  Assignee  without 431 

Insanity. 

Insane  Delusion 610 

As  Affecting  Criminal  Responsibility 699 

Partial 595 

See  Homicide 677 

•'  Wills,  Contesting 589 

Instructions. 

Their  Form  and  Requisites 7 

Statute  of  Illinois 8 

"   Colorado 8 

"        "Minnesota 9 

"        "Missouri 9 

"        "   Nebraska 9 

"        "   Kansas 10 

"   Iowa 11 

"Indiana 11 

"        "Michigan 11 

"        "  Ohio 11 

"        "   Wisconsin 11 

"        "   Dakota 10 

"        "   Arizona *  11 

Must  be  in  writing 13 

Improper  for  Court  to  Make  Remarks 13 

In  Writing  may  be  Waived 14 

Court  may  Instruct  without  Being  Asked 14 

Duty  of  Court  to  Instruct 14 

Should  be  Clear,  Accurate  and  Concise 15 

Should  not  be  Argumentative 15 

Should  be  Confined  to  Matters  of  Law 16 

Should  not  Submit  Questions  ot  Law  to  the  Jury 16 


INDEX.  790 

Instructions — Confinued. 

Degree  of  Care  Required  in  a  Given  Case  is  a  Question  of  La-w.  16 

Abstract  Propositions  of  Law  Should  Not  be  Given,  when. ...  17 

Should  not  Ignore  Facts  Proven 17 

Should  not  Give  Undue  Prominence  to  Portions  of  the  Evidence.  18 

Should  not  Give  Prominence  to  Unimportant  Facts 18 

Should  be  Given  When  There  is  any  Evidence,  etc 18 

Must  not  Assume  Facts  Not  Admitted 19 

Facts  not  Controverted  may  be  Assumed 19 

May  Assume  What  the  Law  Presumes 20 

When  all  Material  Allegations  are  Proved 20 

Construction  of  Contracts 21 

Should  be  Confined  to  the  Issues  Being  Tried 22 

Should  be  Based  on  the  Evidence 22 

One  Instruction  may  be  Limited  by  Others 28 

Should  be  Considered  all  Together 23 

Error  Will  not  Always  Reverse 24 

Must  be  Construed  in  Connection  with  the  Evidence 24 

When  Error  Will  Reverse 24 

Should  be  Harmonious 25 

Must  Require  the  Jury  to  Believe  from  the  Evidence 25 

Need  not  be  Repeated,  when 26 

Instructing  as  in  Case  of  Non-suit 26 

Error  in  Admitting  Evidence  Obviated  by 27 

When  not  Obviated  by 27 

Effect  of  Evidence  Limited  by 27 

Jury  may  Come  in  for  Further  Instructions 28 

The  Giving  of  Further  Instructions  is  in  the  Discretion  of  the 

Court 28 

Court  may  Limit  the  Time  for 28 

In  Criminal  Cases,  Jury  are  the  Judges  of  the  Law  and  Facts.  28 
Insurance. 

Duty  of  the  Court  to  Interpret  the  Policy 253 

Suit  to  be  Brought  within  Tv/elve  Months 253 

Non-Payment  of  Premium 254 

Estoppel  by  Uniform  Course  of  Business 255 

Application  is  Made  a  Warranty 255 

Warranty  as  to  Amount  of  Incumbrance 255 

Fraud,  Knowledge  of  Agent  of  the  Company 257 

Condition  as  to  Other  Insurance 258 

Other  Insurance  known  to  the  Defendant 260 

Representations  as  to  Incendiarism 260 

Warranty  as  to  Title 261 

Non-compliance  with  Conditions 261 

Furnishing  Proof  of  Loss 262 

Waiving  Proof  of  Loss 264 

Condition  to  Render  Account  of  Loss  Forthwith 266 

Promises  Becoming  Unoccupied 267 

Premises  Temporarily  Vacant 268 

False  Swearing  in  Proofs  of  Loss 269 


800  INDEX. 

Intent. 

When  Material  in  Trespass 536 

In  Criminal  Cases — Assault  with  Intent,  etc 659 

Felonious  Intent — Larceny 739 

Party  Presumed  to  Intend  Natural  Results  of  bis  Acts 695 

Intoxicating  Liquors — Civil  Damages. 

Suit  bj-  Wife,  Statutory  Provisions 270 

What  must  be  Proved 271 

Defendants  Jointly  and  Severally  Liable 271 

Sufficient  if  the  Liquor  Sold  Contributed 271 

Owner  of  Premises  not  Liable,  when 272 

Suit  against  Saloonkeeper  and  Owner  of  Building'  Jointly 272 

Propriety  of  the  Law  not  a  Question  for  the  Jury 273 

Burden  of  Proof,  what  must  be  Proved 273 

Proximate  Cause,  what 274 

New  or  Intervening  Cause 275 

Preponderance  of  Evidence  Sufficient 276 

Good  Faith  not  a  Mitigation,  when 276 

Verdict  must  be  Founded  on  the  Evidence 277 

Selling  Liquor  without  License 730 

Joint  Wrongdoeks — Aiders,  Abettors,  etc 654 

Jury.. 

Have  no  Right  to  Disregard  the  Testimony  of  a  Witness  withr 

out  Cause 33 

When  may  Disregard  Testimony  of  a  Witness 34 

Should  Reconcile  the  Testimony,  if  Possible 35 

Weight  of  'i'estimony  a  Question  of  Fact  for  the 

Verdict  of,  to  be  Determined  by  the  Evidence  Alone 49 

May  Believe  Part  of  an  Admission  and  Reject  Part 45 

Propriety  of  the  Law  not  a  Question  for 273 

May  come  in  for  Further  Instructions 28 

In  Criminal  Cases  are  the  Judges  of  the  Law  and  Facts 28.  647 

In  the  Anarchists'  Case 716,  717 

Must  Take  the  Law  from  the  Court 591 

Not  to  Disbelieve  as  Jurors  if  they  Believe  as  Men 716 

Have  the  Right  to  Disregard  Instructions 717 

Not  to  Convict  on  Suspicion 718 

Judges  of  the  Credibility  of  Witnesses 721 

Duty  to  Scrutinize  all  Instructions 728 

General  Rule  of  Law  Governing  Juries 728 

Landlord  and  Tenant. 

The  Relation  must  Exist 278 

Suit  for  Rent 279 

Occupant  Liable  for  Rent,  when — Illinois 279 

Surrender  of  Premises,  How  effected 280 

Surrender  Must  be  Assented  to  by  Landlord 280 

Eviction  Stops  the  Rent 281 

Eviction  from  Part  of  Premises 281 


INDEX.  801 

Landlokd  and  TEt^At^T— Continued. 

1    Forcible  Expulsion  not  Necessary 281 

'1,  Acts  of  Trespass  not  Eviction 282 

'  What  Constitutes  Eviction 283 

Landlord's  Lien  for  Rent — Illinois 283 

Levy  of  Distress  Warrant  not  Necessary  to  Perfect  Lien 284 

Lien  against  Purchaser  from  Tenant,  when 284 

Tenant  Holding  Over — Contract  Implied 284 

New  Contract  Implied,  when 285 

When  not  Implied 286 

Wrongful  Holding  Over — Illinois 286 

Tenant  cannot  Deny  Landlord's  Title 287 

Landlord  not  Bound  to  Repair 287 

Title  to  Crops  is  in  the  Tenant 288 

Tenant's  Right  to  Remove  Fixtures 288 

Larceny. 

Crime  Defined 739 

Every  Material  Allegation  Must  be  Proved 634 

Rule  for  Determining  Value  of  Property 751 

Value  Must  be  Proved 740 

Name  of  Party  Injured  Must  be  Proved 740 

Special  Property  Sufficient 740 

Identity  of  Accused 741 

Criminating  Circumstances  Proved 741 

Person  Having  Possession  of  Property  Must  be  Called  as  a  Wit- 
ness    741 

Taking  Must  be  with  Felonious  Intent 74y 

Taken  under  Claim  of  Right 744 

Possession  Obtained  by  Fraud,  with  Intent 745 

Money  must  be  Proved  to  be  Genuine 745 

Presumption  from  Possession  of  Stolen  Property 746 

Possession  Explained 747 

What  Constitutes  the  Taking  and  Carrying  Away 74 1 

Lost  Goods  Found 742 

Larceny  of  Estrays 743 

Venue  of  Conversion 750 

Forms  of  Verdict 751 

As  Bailee. 

Meaning  of  the  Term - 747,  750 

Felonious  Intent  Necessary 748 

Taken  with  Intent  to  Repay  Himself 748 

Levy  of  Execution. 

What  Constitutes 539 

Invalid,  when 539 

.   Colorable  Levy  Invalid 539 

Libel. 

Libel  Defined 509 

Malice  Defined 609 

51 


802  INDEX. 

Libel — Continued. 

Damages  Presumed 510 

Plea  of  Justification  Filed 510 

Malice  Presumed,  when 511 

Plea  of  Justification  an  Aggravation,  when 512 

Not  an  Aggravation 518 

Mitigation  of  Damages 513 

General  Issue  Impliedly  Admits,  etc 514 

No  Plea  of  Justification  Filed 513 

Liberty  of  Speech — Anarchists''  Case 711 

Lien. 

Of  Common  Carrier 110 

Factor's  Lien 124 

Of  Landlord  for  Rent — Illinois 283 

Levy  of  Distress  Warrant  not  Necessary 284 

Landlord's  Lien  against  Purchaser  from  Tenant 284 

Of  Judgment  and  Chattel  Mortgage 487 

Of  Warehouseman 560 

Limitations. 

Statute  a  Bar,  when 290 

Payment  a  new  Promise 290 

When  the  Statute  Begins  to  Run 291 

Running  Accounts 291 

Absence  from  the  State 292 

Debt  Revived  by  New  Promise 292 

Must  be  a  Promise  to  Pay  the  Debt 298 

What  Amounts  to  a  Promise 293 

What  is  not  a  Promise 293 

Does  not  begin  to  Run  until  Fraud  Discovered 293 

Malice. 

How  Proved 295 

Express,  Defined 678 

Implied,  Defined 678 

Implied,  when 695 

Aforethought 694 

Presumed,  when 695 

3IALICI0US  MiscniEP. 

Crime  Defined 752 

Malice,  how  Proved 752 

Ownership,  how  Proved 752 

Ownership  Must  be  Proved  as  Alleged 753 

Injury  Must  be  Proved  as  Alleged 753 

Malice  Must  be  Proved 753 

Malice  against  the  Owner  Must  be  Shown 753 

Malicious  Prosecution. 

What  Must  be  Proved 295 

Want  of  Probable  Cause  must  be  Proved 296 

Charge  Must  be  Willfully  False 296 


INDEX.  803 

Malicious  Proskcuticx — Con  firmed. 

Arrest  without  Probable  Cause 297 

What  is  Probable  Cause 296 

Malice  may  be  Inferred  from  Want,  etc 297 

Burden  of  Proof  on  the  Plaintiff , 299 

What  is  Want  of  Probable  Cause 300 

Cannot  be  Inferred  from  Proof  of  Malice '      300 

Not  Necessary  that  a  Crime  should  have  been  Committed 301 

The  Prosecution  Must  be  Ended 301 

Discharge  by  Justice 302 

By  Advice  of  Counsel 302 

Presumption  from  Good  Character 304 

Mai-practice  . 

Warranty  of  Skill,  etc.,  Implied 305 

Patient  Bound  to  Follow  Instructions 308 

Burden  of  Proof 308 

Ordinary  Skill  Defined 305,  306 

Manslaughter— ifom(C(VZ^ 692 

Defined,  in  the  Anarchists'  Case 729 

Margins 123 

Married  Women. 

May  Own,  Manage  or  Convey 310 

May  Employ  Husband  as  Agent 311 

When  Liable  for  Repairs  on  House 312 

May  Ratify  the  Act  of  Husband 312 

Husband  May  Give  to  Wife,  when 313 

When  Proceeds  of  her  Farm  Belong  to  Husband 313 

What  not  Separate  Estate  as  to  Creditors 314 

Wife  may  Give  Property  to  her  Husband 316 

Husband  Entitled  to  Earnings  of  Minor  Children 316 

Work  and  Labor  by— Illinois 316,  317 

Husband  Liable  for  Goods  Furnished  Wife,  when 61 

Living  Separate  without  her  Fault 62 

Desertion  of  Husband  by 62,  63 

Master  and  Servant. 

Master  Liable  for  Injury  to  Servant,  when 417 

Negligence,  Railroad  Companies 382 

Measure  of  Damages. 

Generally,  How  Determined 342 

Death  from  Negligent  Act 320,  321,  322 

Death  from  Intoxication. 

Suit  by  Widow 322 

Damage  cannot  be  Given  for  Mortification  or  Mental  Suffering 

of  Wife 823 

Exemplary  Damages 323 

Damages  from  Intoxication  other  than  Death 324 

Personallnjury. 

From  Defective  Sidewalk. ..  - 375 


804  INDEX. 

Measuke  op  Damages — Continued. 

Damages  May  be  Allowed  for  Pormanent  Injury 325 

Exemplary  Damages  in  Tort  Generally 327 

Exem  plary  Damages  Defined 343 

False  Imprisonment 344 

Fraud  and  Deceit. 

Not  Necessarily  Confined  to  Actual  Damage 335 

What  is  Actual  Damage 335 

In  Assault 

Exemplary  Damages 827,343 

Aggravation  of  Damages 828 

Mitigation  of  Damages 329 

Exemplary  Damages  Not  Allowed,  when 329 

Landlord  and  Tenant. 

Premises  Not  Occupied— No  Rent  Paid 829 

In  Libel. 

Jury  should  Consider,  what 332 

Filing  Plea  of  Justification  an  Aggravation  of 340 

When  Not  an  Aggravation 340 

Mitigation  of 340 

Slander. 

Words  Actionable,  per  se 338 

Damages  Presumed,  when 839 

Pecuniary  Circumstances  of  Defendant 839 

Words  Spoken  in  Heat  of  Passion 339 

Drunkenness  in  Mitigation 340 

Plea  of  Justification  must  be  Filed  in  Good  Faith 840 

Exemplary  Damages  may  be  Given,  when 341 

Plaintiff's  Bad  Reputation  may  be  Shown 339 

In  Suit  on  Bond. 

Replevin 330 

In  Malpractice. 

Jury  should  Consider,  what 333 

In  Malicious  Prosecution 344 

Marriage  Contract. 

Breach  of  Marriage  Contract 833 

In  Fraud  and  Deceit 335 

Exemplary  Damages  Defined 843 

Work  and  Labor. 

Part  Performance 836 

Contract  to  Deliver — Part  Performance 836 

Refusal  to  Deliver  Personal  Property 336 

Property  bought  for  Re-sale f  37 

Refusal  to  Accept  Personal  Property 838 

Common  Carriers. 

Loss  of  Baggage 842 

Goods  Lost 842 

In  Breach  of  Contract  for  Future  Delivery    160 


INDEX.  805 

Measure  op  Damages— CowfiMMcd. 

//(  TresiMss. 

Good  Faith  in  Miti<?ation 533 

Exemplary  Damages 343 

In  Trover. 

Suit  by  General  Owner 662 

By  One  Having  Special  Property 562 

By  Lien  Holder 5G2 

Against  Lien  Holder 663 

In  Warranty. 

On  Breach  of 683 

On  Entire  Contract. 

On  Breach  of 623 

For  Work  and  Labor 621 

Mistake  op  Fact. 

Right  to  Rescind  Contract  for 151 

Motive. 

Want  of,  in  Criminal  Cases 636 

Municipal  Corporations. 

Liable  for  Unsafe  Conditions  of  Streets,  when 364 

Duty  Imposed  by  Law 365 

Duty  to  Provide  Guards  and  Notice 366 

Streets  Liclude  Sidewalks 366 

Accident  and  Negligence 366 

Reasonable  Care  and  Caution,  what 367 

Care  must  be  Proportionate  to  the  Known  Danger 367 

No  Liability  without  Negligence 368 

Slight  Negligence  will  not  Defeat  Recovery 369 

Degree  of  Care  required 370 

Negligence  of  Driver 370 

Not  Obliged  to  Open  Streets 370 

Do  not  Insure  the  Safety 370 

Liable  for  Negligence  of  Others,  when 371 

Not  Liable  for  the  Negligence  of  Others,  when 373 

Defective  Sidewalk — Notice  of  Presumed,  when 875 

Must  have  Notice,  Actual  or  Constructive 374 

Changing  Grade  of  Street. 

Injury  to  Adjoining  Property 375 

Liable  for  Want  of  Reasonable  Care  Only 376 

Contra 377 

Changing  Watercourses 378 

Measure  of  Damages 380 

Defective  Plan  of  Public  Improvement 877 

Sewer  out  of  Repair 379 

Murder — Homicide 676 

Definition,  Anarchists'  Case 710 

Penalty,           "              "     711 


806  INDEX. 

Negligence,  Generally. 

Burden  of  Proof 346 

Degree  of  Care  Required 347 

Ordinary  Care  Required 347 

Plaintiff  must  Exercise  Reasonable  Care 347 

Of  Servant,  Master  Liable  for 348 

Servant  must  be  Acting  within  Scope  of  EmploA-nient 349 

Wrongful  Act  of  Servant 350 

Must  be  Proximate  Cause 350 

Of  Contractor 351 

Contributory  and  Gross 352 

Comparative  Negligence 354 

Death  Caused  by 354 

Equal  Negligence 357 

Injury  the  Result  of  Accident,  and 358 

Voluntary  Exposure  to  Danger 358 

Ordinary  Care  Defined 359 

Slight  and  Gross  Defined 359 

Collision  on  Highway 359 

Of  Common  Carrier. 

Injury  to  Passenger,  Prima  Facie  Evidence  of Ill 

Cannot  be  Avoided  by  Contract 101 

Not  Liable,  when 88 

Of  Railroad  Comjxinies, 

Duty  to  Furnish  Safe  Machinery,  etc 382 

Liable  for  Torts  of  Servant. . . . ; 383 

Negl  igence,  per  se 383 

Plaintiff  must  Exercise  Ordinary  Care 383 

Right  to  Make  Rules 384 

Expelling  Passenger 385 

Passenger  can  Only  be  Put  Off  at  Station 386 

Danger  from  Fire 361 

Injuries  to  Passengers 386 

Fencing  Track. 

Failure  to  Comply  with  the  Law,  Negligence  per  se 387 

Statutory  Provision 387 

Must  Exercise  Reasonable  Care  to  Prevent  Injury  to  Animals. .  388 

Casual  Breach  in  Fence 389 ' 

Stock  Unlawfully  Running  at  Large 391 

Obligation  to  Fence  not  Limited  to  Adjoining  Owner 392 

Cattle  Guards 893 

Plaintiff's  Contributory  Negligence 393 

Stock  Escaping  and  Running  at  Large 393 

What  must  be  Proved 393 

Rights  and  Liabilities  at.  Equal  and  Mutual 403 

View  of  Track  Obstructed  by  Weeds 405 

Care  Required  of  Travelers 406 

Care  Must  be  Proportionate  to  Known  Danger 407 

Contributory  and  Gross  Negligence 408 


INDEX.  807 

Negligence,  Generally— CoH('i«Mf(?. 

Negligence  per  se  in  Traveler 409 

Conduct  in  Presence  of  Sudden  Danger 410 

Negligence  Charged  Must  Cause  Damage 411 

Injury  to  Stock  at 4i2 

Neglect  to  Ring  Bell  Prima  Facie  Evidence,  etc 412 

Burden  of  Proof  as  to  Ringing  Rell 413 

Must  Exercise   Reasonable   Care  and  Watchfulness  to  Avoid 

Injuring  Stock 413 

Speed  through  Cities  Limited  by  Ordinance 414 

Speed  through  Cities  not  Limited  by  Ordinance 415 

Contributory  Negligence  of  Children 415 

Negligence  as  Regards  Children 417 

Injuries  hy  Fire. 

Prima  Facie  Negligf  nee 894 

Reasonable  Care  to  Prevent  Spread  of  F.re 394 

Must  Provide  Approved  Apparatus 395 

Dry  Weeds  and  Grass 397 

Care  Required  of  Land  Owner 397 

Degree  of  Care  Required  of  Company 399 

Highivay  Crossing. 

Must  be  Put  in  Safe  Condition 401 

Care  Required  at 401 

Negligence  of  Driver 401 

Signals  to  be  Given  at 403 

Master  Liable  to  Servant, 

Liable  to  Servant,  when 417 

Duty  Towards  Employes 418 

Bound  to  Employ  Reasonable  Care  and  Skill 421 

Servant  Takes  no  Risks  not  Incident  to  Business 420 

Servant  not  Bound  to  Inquire,  etc 420 

Negligence  in  Employing  Servant 420 

Degree  of  Care  Required 421 

Employe  Assumes  all  Ordinary  Risks 422 

Servant  Having  Knowledge  of  Defects 423 

Servant  must  JJ>e  Reasonable  Care 423 

Negligence  of  Fellow-Servant 424 

Fellow-Servant  Defined 424 

Duty  to  Make  Rules,  etc 425 

Negligence  of  Defendant  and  of  Fellow-Servant 426 

Of  Municipal  Corporations. 

Slight,  of  Plaintiff,  will  not  Defeat  Recovery 354 

Of  Driver 401 

Municipal  Corporations 3fi4 

Negotiable  Instruments. 

Presumption  in  Favor  of  the  Holder 429 

Presumption  can  Only  be  Overcome  by  Proof 430 

Taken  as  Security — An  Innocent  Purchaser 430 

Not  Taken  in  Payment  or  Part  Payment,  etc 430 


808  INDEX. 

Negotiable  Instkuments — Continued. 

Assignee  with  Notice  from  an  Assignee  without 431 

Indorsement  in  Blank 431 

Assignee  after  Maturity 431 

Assignee  before  Maturity  without  Notice,  etc 432 

Assignment  without  Consideration 432 

Assignee  with  Notice  of  Suspicious  Facts 432 

Who  Deemed  a  Bona  Fide  Holder 483 

Assignee  with  Knowledge 434 

Liability  of  Guarantor  of  Collection  or  Assignor  under  Illinois 

Statute— Note 434 

Liability  Fixed  by  Statute 434 

Intention  does  not  Govern 435 

Due  Diligence  Defined 435 

Proof  of  Due  Diligence 436 

Suit  Unavailing 436 

Part  of  Noto  Collectible 437 

Insolvency  of  Maker 438 

Maker  Removed  from  State 437 

Execution  Returned — No  Property  Found 438 

Insolvency,  How  Proved  Otherwise 439 

Return  not  Conclusive 439 

Execution  from  Justice 439 

Possession  of  Personal  Property  Evidence  of  Ownership. .  .439,  440,  441 

Guarantor  of  Payment. 

Liability  of  Indorser  and  Guarantor 441 

Liability  Fixed  by  Contract 441 

Name  of  Third  Person  on  Back  of  Note 442 

Liability  Continues  how  Long — Till  Note  is  Paid 442 

Delay  will  not  Release 442 

Consideration  Necessary 443 

What  Agreement  Releases  Guarantor 444 

Subsequent  Promise  to  Pay 446 

Release — Extending  Time 444 

Failure  or  Want  of  Consideration. 

Burden  of  Proof 448 

Consideration  Presumed 449 

Abandonment  of  Claim  Good  Consideration 449 

Claim  must  be  Sustainable 450 

Without  Consideration,  Void,  when 450 

New  Party,  New  Consideration 462 

Obtained  b;/  Fraudulent  Re])resentations. 

What  Must  be  Proved 451 

Representation  Must  be  Material 451 

Obtained  by  Fraud  and  Circumvention. 

Void,  when 451,  4.52 

Fraud  in  Consideration  not  Sufficient 452 

Signing  without  Reading 454 

Mistake  as  to  Legal  Effect 454 


INDEX.  809 

Negotiable  Instruments — Confhnied. 

Maker  must  use  Reasona^ile  Care  to  Avoid,  etc  455 

What  is  Reasonable  Care 455 

Burden  of  Proof 456 

Fraud  may  be  Waived 457 

Stolen  or  Wrongfully  Obtained 458 

Maker  Liable,  when 458 

Duress,  What — Abuse  of  Criminal  Process 459 

Moral  Coercion 459 

Lawful  Luprisonment  not  Duress 461 

Notice. 

Carrier's  Liability  not  Limited  by 103 

Of  Exemption  Bindin?  on  Shipper,  whon 102 

Of  Exemption  not  Binding  Shipper,  when 102 

To  Municipal  Corporation,  of  Defective  Sidewalks,  Presumed, 

when 375 

Must  have  Actual  or  Constructive  Notice   of   Defective  Side- 
walks   

By  Possession 374 

To  Agent,  Notice  to  Principal 66 

To  Corporation,  How  Given 463 

Facts  Culling  for  Inquiry 464 

Recitals  in  Deed 464 

Of  Unrecorded  Deed 465 

To  Agent,  Binding,  when 463 

Option  Contracts — Commission  Merchants 129 

Partnership. 

Who  are  Partners  in  Fact 466 

How  Formed 466 

As  to  Third  Persons 466 

Holding  Oneself  Out,  etc 467 

In  the  Name  of  one  Partner 468 

Test  of  Partnership 469 

Power  to  Bind  the  Firm 469 

What  Acts  do  not  Bind 470 

Partner  Using  Credit  or  Efrects  of 470 

Acts  Beyond  the  Scope  of  Business 470 

Bound  by  Ratification 471 

When  Fraud  of  one  Partner  Binds  the  Firm 471 

Notice  of  Dissolution  Necessary,  when 471 

Cannot  Sue  Each  Other  at  Law 472 

When  may  Sue  at  Law 474 

Parties. 

Competent  Witnesses 43 

Not  Compelled  to  Testify— Failure 43 

Testimony  of,  to  be  Weighed  by  Jury 43 

Verbal  Admissions  of,  How  Weighed 44, 45,  46 

When  not  Estopped  by  Admissions 46 


810  rNDEx. 

Parties — Continued. 

When  not  Bound  by  Offer  to  Compromise 47 

Not  Bound  by  Statements  of  his  own  Witness 48 

Capacity  to  Contract 146 

Failing  to  Testify 43 

Passengeks — Commo7i  Carriers Ill 

Payment. 

Part  Payment  in  Full 149 

Part  Payment  by  Strangers 150 

Giving  a  Note  not  Payment 461 

Performance, 

Tender  of 163 

Prevented  by  Defendant 616 

Substantial 618 

Payment,  Condition  Precedent 619 

Perjury. 

Charge  must  be  Proved 755 

Proof  to  Authorize  Conviction 755 

Materiality  of  Evidence  Sufficient,  when 756 

One  Witness  Sufficient,  when 756 

Authority  of  Officer  must  be  Shown 757 

Testimony  must  be  Proved  as  Alleged 757 

Must  be  Willingly  and  Knowingly  False 758 

No  Reasonable  Grounds  of  Belief 757 

Official  Character  of  Justice  must  be  Shown 758 

That  the  Accused  was  Sworn  must  be  Shown 758 

More  than  one  Witness  Required,  when 759 

What  must  be  Proved 759 

Materiality  must  be  Shown 760 

Test  of  Materialty 760 

Plea. 

Of  Justification  in  Libel 

Of  Justification  in  Slander  must  be  Filed  in  Good  Faith 508 

Of  Justification  in  Slander,  How  Proved 505 

When  Plea  does  not  Impute  Crime,  How  Proved 607 

Office  of  the  Plea 508 

Possession. 

What  Sufficient  to  Maintain  Trespass 

Of  Real  Estate  Presumed  to  be  under  Legal  Title 187 

Right  to,  must  be  Shown  in  Ejt ctment 180 

Prima  Facie  Evidence  of  Title 184 

One  First  in  Possession  has  the  Better  Title 185 

Deed  from  Party  Claiming 185 

What  Constitutes,  of  Real  Estate ]93 

What  Constitutes,  of  Woodland 193 

Enclosure  by  Natural  Objects 194 

Not  under  Color  of  Title 194 


INDEX.  811 

Possession — Confhaud. 

According  to  Boundiirics  in  Title  P.ipors 195 

Notice  by 196 

Of  Personal  Property. 

Change  of,  on  Sale  of — Frauds  agahist  Creditors 212 

Of  Personal  Property,  Evidunce  of  Title 216,  429 

Temporary  Possession  by  Vendor 483 

Sufficient  to  Maintain  Trespass 535,  542 

As  against  a  Wrongdoer 536 

Evidence  of  Title  in  Trover 552 

Temporary,  not  Delivery,  when 560 

Symbolical  Delivery  of 218 

May  be  by  Agent 218 

Of  Growing  Crops 218 

Temporary,  of  Vendee 219 

Possession  Advekse — Ejectment 185 

Presumptions. 

Of  Innocence 715,  717 

Not  a  Mere  Form 719 

Prescription — Highways 251 

Principal  and  Agknt — Agency 57 

Prosecuting  Attorney. 

Statements  of 624 

Proximate  Cause. 

What  is 274 

Negligence  Charged  Must  be 350 

Public  Officer. 

Is  a  Special  Agent 59 

Individual  Members  of  Board  Cannot  Act 68 

Purchaser 

Must  Exercise  Reasonable  Caution 244 

Rape. 

Crime  Defined 762 

Submission  through  F>';ir 762 

Child  under  Lawful  Age 763 

Complaining  to  Others 764 

Consent  Given - 764 

Female  Bound  to  Resist 765 

Power  of  Resistance  not  Overcome,  etc 765 

Contact  of  Sexual  Organs  Necessary 766 

Character  of  the  Woman  may  be  Shown  to  Affect  Credit 766 

Character  of  Woman  no  Defense 766 

No  Outcry  Made 767 

Assault  with  intent,  etc 767 

Reasonable  Doubt  as  to  Intent 768 

Ratification. 

What  is 242 


812  IJS'DEX. 

ItATIFICATIOX — ^0"fhl1ie(L 

Fraudulent  Purchase  may  be  Ratified ,       241 

Act  of  Partner  may  be  Ratified 472 

Of  Agent's  Acts — Ayenctj 63 

Trespasser  by 540 

Real  Estate  Brokers 127,  128 

Reasonable  Doubt. 

Raised  by  Evidence 718 

"        "   Ingenuity  ot  Counsel 718 

In  the  Anarchists'  Case 715,  718,  720 

What  is  Sufficient  to  Raise — Evidence 721 

Receipt. 

Prima  Facie  Correct 54 

May  be  Contradicted 54 

Evidence  of  Goods  in  Good  Order 99 

Notice  of  Exemption   in  Carrier's  Receipt,  when  Binding  on 

Shipper -  104 

When  Notice  of  Exemption  not  Binding  on  Shipper 104 

Replevin. 

When  the  Action  Lies 475 

Right  to  Possession  Sufficient 475 

Burden  of  Proof 476 

What  Must  be  Proved 476 

Wrongful  Detention,  How  Proved 476 

When  Demand  not   Necessary 477 

Contesting  Plaintiff's  Title,  no  Demand  Necessary 477 

When  Demand  Necessary i78 

Wrongful  Taking  or  Demand  Must  be  Proved 479 

What  Essential  to  a  Demand 480 

Against  an  Officer. 

Property  Taken  on  Execution -480 

Execution  Conclusive,  when 4?0 

Executions  and  Indorsements  Prima  i^an'e Evidence,  when....  480 

When  Demand  Necessary 478 

Levy  on  Interest  of  Joint  Owner 481 

Plea  of  Property  in  A.  and  B 481 

Burden  of  Proof 481 

Plea  of  Property  in  a  Stranger 482 

Possession  Evidence  of  Title 482 

Lien  of  Execution  by  Statute 482 

Fraudulent  Sale  as  against  Execution 483 

Temporary  Possession  by  Vendor 483 

Growing  Crops,  When  Personal  Property 484 

Levy  on  G  ro w  ing  Crops,  and  Taking  Possession 484 

Building  Personal  Property,  when 485 

Lien  of  Judgment  and  Chattel  Mortgage 487 

Trover.  Property  Not  Found 488 

Bailee  Cannot  Deny  Bailor's  Title 488 


INDEX.  813 

Repleytn — Continued. 

Right  to  Distrain  Cattle  Trespassing 489 

Must  be  Taken  Damage  Feasant 49  ' 

Property  held  under  Replevin  Bond 484 

Plaintiff's  Right  to  a  Part  of  the  Property 485 

Property  of  Minor  Child 485 

Residence  and  Domicil. 

Defined 491 

Doinicil  of  the  Husband  that  of  the  Wife 491 

Change  of 491 

Robbery. 

Crime  Defined 770 

Facts  Constituting 770 

Taking  Must  be  by  Force  or  Foar 77 1 

Property  Must  be  Proved  as  Charged 771 

Verdict  may  be  for  Larceny 772 

What  is  Meant  by  Taking  from  the  Person 772 

Dangerous  Weapon,  etc 774 

Sale. 

What  is  a  Contract  of 148 

Of  Personal  Property,  Future  Delivery ^(0 

Procured  by  Fraud 151,  157 

Contract  of,  may  be  Rescinded  for  Fraud 151 

Contract  of,  may  be  Ratified 241 

Fraudulent  as  against  Creditors 483 

By  Simple,  Implied  Warranty 574 

When  Not  by  Sample 575 

When  the  Title  Passes 493 

Conditional  Sale 494 

Tranfer  of  Bill  of  Lading 495 

A  Thief  acquires  no  Title,  He  can  Convey  None 495 

For  Future  Delivery. 

Implied  Warranty  of  Kind  and  Quality 576 

OfMachineon  Trial 579 

Selp-Depense — Homicide 703 

Selling  Liquor  "without  a  License. 

What  Constitutes  the  Offense 730 

Burden  of  Proof  as  to  License 731 

One  Sale,  Delivered  at  Diff  'rent  Times 731 

Sales  by  Servant  or  Employe 732 

When  Not  Liable  for  Act  of  Servant 732 

Charge  Must  be  Proved  as  Alleged 733 

Agency  Must  be  Proved 734 

Single  Transaction  One  Offense 734 

Sale  to  Minors 734 

Burden  of  Proof  as  to  Written  Order 734 

Knowledge  of  Minority  Immaterial 735 

Knowledge  and  Intent  Material 735 


814  INDEX. 

Selling  LiQroR  ■without  a  License — Continued. 

Selling  to  a  Person  in  the  Hiibit,  etc 7 736 

Meaning  of  "In  the  Habit  of  Getting  Intoxicated  " 736 

Habit  Must  Exist  at  the  Time 737 

In  the  Habit  of  Drinking,  Not  Enough 738 

Knowledge  or  Criminal  Intent  Necessary 737 

Intent  Necessary ^ 736 

Drunkenness  Defined 738 

Settlement— ^ccoimf  Stated 51 

Sidewalks — Municipal  Corporations 364,  369 

Slander. 

Nature  of  the  Action 497 

Malice  and  Damage  Presumed,  when 497 

Malice  Defined 498 

All  the  Words  Need  Not  be  Proved 498,  505 

Words  Presumed  to  be  Used,  How 498 

Charge  of  Dishonesty 499 

Charge  of  Adultery,  etc 499 

Charge  of  Arson  by  Inuendo 500 

Charge  of  Murder  by  Inuendo 501 

Words  Must  be  Proved  as  Charged 501 

Words  Not  Spoken  Maliciously 502 

Anger  no  Justification 503 

Anger  in  Mitigation,  when 503 

Slanderous  Words  Explained 504 

Piea  of  Justification,  How  Proved 505 

When  the  Plea  Does  Not  Impute  Crime 507 

Plea  of  Justification  Filed  in  Good  Faith 508 

Ofiice  of  the  Plea  of  Justification 508 

Repeating  Reports 508 

Special  Propeuty 

Defined 536 

Trover,  by  One  Having 533 

In  Malicious  Michief 752 

Statements  op  Counsel 49 

Statute  of  Frauds  . 

What  is  a  Promise  to  Pay  the  Debt  of  Another 208 

What  is  not 208 

Contract  not  to  be  Performed  within  a  Year 210 

Streets — See  Municipal  Corporations. 

Appropriation  of 141,  144 

Subscription  Paper. 

Suit  on 158 

SuNDAT. 

Contracts  Made  on 154 

Seduction 779 

Sureties. 

Signing  Bond  in  Blank 82,  83 


*                                             INPEX.  S15 

Takixg  Property  without  Consent  op  Owner 778 

Tender. 

What  Constitutes  a  Valid  Tender 515 

Burden  of  Proving 516 

Made  as  a  Gift  or  Present  not  Valid 517 

Made  on  Condition  not  Valid 517 

Willingness  to  Pay  no  Tender 517 

If  Accepted,  Must  be  upon  Terms  Proposed 518 

Specifying  Objection  a  Waiver  of  Others 519 

Production  of  Money  may  be  Waived 519 

Kept  Good 520 

After  Suit  Brought 520 

Equivalent  to  Payment,  when 559 

On  Condition  of  Receipt  in  Full 517 

Tender  Waived 521 

Title. 

In  Action  of  Ejectment  only  Legal  Title  Involved 180 

One  in  Possession  of  Real  Estate  Presumed  to  have 180 

Can  Only  be  Conveyed  by  Deed 181 

Deduced  from  a  Common  Source 181 

One  Having  Prior  Deed  has  Legal  Title 182 

Possession  Prima  Facie  Evidence  of 184 

First  Possessor  has  Better 185 

Deed  from  Party  in  Possession  Claiming 185 

By  Prescription,  without  Color  of  Title 185 

By  Payment  of  Taxes  under  Color  of  Title 191 

Not  Involved  in  Forcible  Entry  and  Detainer 201 

Trespass — Injuries  to  the  Person 523 

Assault  and  Assault  and  Battery  Defined 523 

Plaintiff's  First  Assault 524 

Aiding,  Abetting,  etc 525 

Evil  Intent  or  Negligence  Required 525 

Expelling  Trespasser 526 

Repelling  Force  by  Force 527 

In  Defense  of  Possession 527 

Self-Defense,  Excessive  Force 528 

Drunkenness  no  Justification 529 

Words  or  Provocation  no  Justification 530 

Words  of  Provocation  in  Mitigation  of  Damages 529 

Degree  of  Proof  Required  630 

False  ImjJrisonment. 

What  Constitutes 530 

Who  Liable  as  Joint  Trespassers 531 

When  Not  Liable  as  Joint  Trespassers 532 

Part  of  Defendants  Guilty,  Form  of  Verdict 533 

Good  Faith  in  Mitigation 533 

Exemplary  Damages,  when 534 

njuries  to  Personal  Property. 

What  Constitutes 534 


816  INDEX. 

TRESPASf? — Continued. 

What  Possession  Sufficient 535 

Possession  by  Agent 635 

Possession  as  against  Wrongdoer 636 

Special  Property  Defined 536 

Intent  Immaterial 536 

Acts  Prima  Facie  Trespass 536 

Trespass  ab  Initio 537 

Justification  by  an  Officer 537 

Property  Taken  on  Execution 538 

What  Constitutes  a  Levy 539 

Levy  Invalid,  ■when 539 

Officer  Selling  Growing  Crops 540 

Seizure  under  Distress  Warrant 541 

When  Landlord  not  Liable 541 

Exemplary  Damages 542 

Actual  Damages  Only 642 

On  Real  Estate. 

Actual  Possession  Sufficient,  etc 542 

Trespasser  by  Ratification 540,  543 

By  an  Agent 543 

Entry  Under  Legal  Process 544 

Abuse  of  Legal  Process 544 

Entry  Obtained  by  Fraud 545 

Joint  Trespassers 545 

Taking  Personal  Property  an  Aggravation 546 

*^«/  Domestic  Animals. 

Different  Laws  in  Different  States — Note 546 

Not  Permitted  to  Run  at  Large 547 

Owner  of  Land  not  Bound  to  Fence,  when 547 

Lawfully  Running  at  Large 548 

Land  Protected  by  Fence 548 

What  is  a  Sufficient  Fence 548 

Escaping  through  Division  Fence 549 

Burden  of  Proof 549 

Entry  through  Plaintiff's  Portion  of  the  Fence 650 

Bound  to  Fence  against  what  Stock 550 

Trover. 

By  General  Owner 552 

By  one  Having  a  Special  Property 533 

By  one  in  Possession 553 

What  Interest  Plaintiff  Must  Have 554 

Suit  by  Servant  or  Agent 554 

Burden  of  Proof 555 

Must  Prove  Conversion 555 

Property  Lost  not  Conversion 656 

Negligence  of  Defendant 556 

Demand  and  Refusal  Prima  Facie  Evidence,  etc 556 

When  Demand  not  Necessary 557 


IKDEX. 


817 


TfiOVKR — Con  fin  ued. 

Willful  Destruction  of  Property  a  Conversion 557 

Title  Claimed  by  Purchase  from  Owner 558 

Tender  Equivalent  to  Payment 559 

When  Title  Passes  without  Payment 659 

Temporary  Possession  by  Vendee 560 

Suit  against  Warehouseman 560 

Warehouseman's  Lien 560 

Tender  Waiver  of  Production  of  Money 561 

Measure  of  Damages — Suit  by  General  Owner 562 

Damages,  one  Having  Special  Property 562 

Damages  by  Lien  Holder 562 

Damages — Suit  against  Lien  Holder 563 

Price  Paid  Prima  Facte  Evidence  of  Value 563 

Price  Paid  not  Conclusive  Evidence  of  Value 563 

The  Demand,  What  Constitutes 563 

Demand  by  Agent,  Ground  of  Refusal 564 

Trunk — Common  Carrier 118 

Usury. 

Interest  Forfeited 565 

Presumption  from  Payment  of 565 

Interest  Paid  to  be  Credited  on  Principal 566 

Excess  Paid  as  Commissions 566 

Attempts  to  Evade  the  Statute 567 

Contract  must  be  Proved  as  Pleaded 567 

Note  Given  for  Usury 568 

Note  Growing  out  of  Antecedi'nt  Transactions 568 

Bona  fide  Holder  of  Note 569 

Verdict. 

'J'o  be  Determined  by  the  Evidence 49 

Must  be  Founded  on  the  Evidence 49 

Forms,  in  the  Anarchists'  Case 716 

Not  Guilty,  Meaning  of 718 

Warehouseman. 

Care  Required  ot 96 

Trover  against , 560 

Lien  of 660 

Warranty. 

By  Agent 59 

What  Constitutes 570 

No  Particular  Form  of  Words  Required 571 

Intention  not  Material,  when 571 

What  Does  not  Amount  to 572 

Mere  Expressions  of  Opinions  not 672 

Praise  or  Boasting  not 573 

Must  Form  Part  of  the  Contract 573 

Warranty  after  Sale 574 

Sale  by  Sample,  Implied 674 

52 


818  INDEX. 

Waebanty— Co»f!'n!<ei. 

Reasonable  Opportunity  to  Inspect,  etc. 575 

Sale  when  not  by  Sample ^ . . . .  575 

Warranted  Equal  to  Sample 575 

Sale  for  Future  Delivery. 

Implied  Warranty 576 

Implied,  of  Kind  and  Quality 676 

Implied  of  Manufacturer 577 

Of  Machine  on  Trial 579 

To  be  Returned  within  Reasonable  Time 579 

May  Return  Property  or  Recoup 578 

When  no  Implied  Warranty 579 

When  Purchaser  has  Opportunity  to  Inspect 579 

Fraud  and  Breach  of  Warranty 680 

Of  the  Soundness  of  a  Horse 580 

Defect  must  Exist  at  Time  of 581 

Visible  Defects  not  Warranted  against 581 

Artifice  to  Prevent  Examination 682 

What  Plaintiff  Must  Prove 682 

Measure  of  Damages 583 

Of  Skill  and  Care  Implied,  when '. 305 

Of  Skill  and  Care  of  Workman  Implied 613 

Watercourses. 

Defined 685 

No  Right  to  Divert  Ancient  Watercourse 585 

Owner  of  the  Soil, Owner  of  the  Surface  and  Subterranean  Water  586 

No  Right  to  Obstruct  Flow  of  Surface  Water 587 

Prescriptive  Right  to  Obstruct  Flow  of  Water 687 

Wills,  Contesting. 

Who  May  Make 590 

Relatives  have  no  Legal  Claim,  etc .  590 

Essentials  of  a  Will 591,  607 

Jury  Should  Take  the  Law  from  the  Court 591 

Witnessing— What  Sufficient 591 

Degree  of  Mind  Required 607 

Less  than  to  Execute  a  Contract 607,  608 

Jnsanlly  or  Unsound  Mind. 

Issue  to  be  Tried 592 

Burden  of  Proof 692 

What  is  Sound  and  Disposing  Mind 593 

Test  of  Testamentary  Capacity 59 1,  607,  608,  609,  610 

What  is  Testamen  ary  Capacity 594 

Partial  Insanity,  Monomania 595 

Eccentricities 609 

Delusion  Regarding  Wife  or  Child's  Property 696 

Sanity  is  Presumed 596 

Insanity — How  Determined 596 

Settled  Insanity  Presumed  to  Continue 696 

Drunkenness 597 

Drunkenness,  Insanity,  when 597 


INDEX.  819 

Wrr  Ls,  Contesting — Continued. 

May  Produce  Insanity 597 

Drunkenness  as  Affecting  Testamentary  Capacity 597 

Partial  Failure  of  Memory 598 

Old  Age  Does  Not  Incapacitate 598 

Previously  Expressed  Purposes 598 

Will  May  be  Referred  to • 599 

Expert  Testimony — Hew  Judged 599 

Testimony  of  Subscribing  Witness — How  Judged 600 

Undue  Influence. 

Issue  to  be  Tried 600 

No  General  Rule— What  Must  Appear 601 

MustAffect  the  Will 602 

Must  Destroy  Free  Agency 602 

Legitimate  Influence,  What 603 

Legitimate  Advice  or  Persuasion 604 

Cannot  Question  Testator's  Motives 604 

Motives  May  be  Inquired  into,  when 604 

Presumption  from  Unlawful  Cohabitation 605 

Effect  of  Groundless  Fears 605 

Provisions  of  Will  may  be  Considered 606 

Contest  on  Appeal  from  Probate  Court. 

Model  Instructions 606 

Contest  in  Chancery. 

Model  Instructions 608 

Witness. 

One  Sufficient,  when. ' 644,  756,  759 

Credibility  of,  Question  of  Faet  for  the  Jury 31 

Circumstances  Affecting  the  Credit  of 31,  32,33 

One  Credible  Witness  may  be  Entitled  to  More   Credit  than  a 

Number  of  Others 33 

Jury  Have  no  Right  to  Disregard  the  Testimony  of,    without 

Cause 33 

When  the  Jury  may  Disregnrd  the  Testimony  of 84 

The  Jury  Should  Reconcile  the  Testimony  of,  if  Possible 35 

Credit  of  a  Witness  Depends  on  Two  Things 34 

A  Fact  is  Proved  if  Reasonably  Inferred 36 

Impeachment  of. 86 

Willfully  Swearing  Falsely 80 

Bad  Reputation  for  Truth 36 

Different  Statements  Out  of  Court 37 

Contradictory  Statements  Out  of  Court 38 

Jury  Need  Not  Disregard  Testimony  of  Impeached  Witness. .  41 

Contradictory  Statements  Out  of  Court  Explained 38 

Testimony  of,  as  to  Dates 42 

Excused  from  Answering 50 

A  Party  as. 

Testimony  of,  to  be  Weighed  by  Jury 43 

Verbal  Admission  of.  How  Weighed 44 

Admission  of,  all  to  be  Considered  Together 45,  46 


820  INDEX. 

Witness — Continued. 

Admission  of,  Jury  may  Believe  Part  and  Reject  Part 45 

Admission  of,  How  to  be  Weighed 44,  45 

For  a  Corporation,  How  Regarded 44 

Attorney  as 60 

In  Criminal  Cases,  Anarchists'  Case 714 

HJxperts. 

Medical  Testimony 599 

Woodland — Ejectment 193 

Words  op  Provocation — Horn  icicle 690 

Work,  Labor  and  Services. 

Implied  Contract 612 

Promise  to  Pay  Implied,  when 612 

Where  no  Price  is  F.xed 613 

Professional  Services,  Price  Implied 613 

Warranty  of  Skill  and  Care  Implied 613,  614 

Ordinary  Skill  Defined ! ' 615 

Effect  of  Accepting  Work 615 

Usual  Wages  Implied,  when 615 

Not  Bound  by  Acceptance,  when 616 

Entire  Contract. 

Fulfillment  Prevented  by  Defendant 616 

Alterations  of  Plans 617 

Substantial  Performance 618 

Leaving  Employ  w  thoul  Good  Cause 618 

Payment  a  Condition  Precedent 619 

Burden  of  Proof 620 

Pretext  for  Leaving 620 

Must  be  Substantial  Cause  for  Leaving 620 

Right  to  Recover  in  Different  States — Note 620 

Rule  of  Damages 621 

Servant  must  Demean  Himself  Respectfully 622 

Leaving  on  Account  of  Sickness 623 

Discharged  or  Compelled  to  Leave  without  Good  Cause 623 

Measure  of  Damages 623 

Workman  must  Avoid  Unnecessary  Damage 624 

Services  by  Member  of  Family 625 

Stranger  Member  of  Family 625 

Services  of  Child 626 

When  Promise  to  Pay  Child  may  be  Inferred 627 

Emancipation  of  Minor 627 

Minor  can  Disaffirm  Contract,  when 628 

No  Implied  Promise  to  Pay  for  Gratuitous  Labor 628 

Agreed  Price  must  Govern 629 

Contract  Presumed  to  Continue,  when 629 

Evidence  of  Reasonable  Worth 630 

Burden  of  Proving  Payment 630 

Not  Bound  by  Offer  to  Compromise 631 

Effect  of  Pleading  Set-Off 631 

Written  Contract  Varied  by  Parol 632 


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